A Win for Workplace Safety: Employer’s Victory in Phone Use Dismissal
DMC Foods Limited, a consumer foods business and ready meal manufacturer, successfully defended an Unfair Dismissal claim raised by Daniel Murtagh, a Warehouse Operative who was dismissed after using a mobile phone while operating a forklift. This case highlights the legal backing given to employers who follow clear, reasonable and legally compliant procedures.
Background
An investigation opened after the Production Manager received a complaint that Mr Murtagh was operating a forklift while using a mobile phone. An external party conducted the investigation, which included CCTV evidence and Mr Murtagh admitting to using the phone. Following the investigation, Mr Murtagh was invited to a Disciplinary Hearing, in which he was not apologetic but attempted to justify his actions. The Managing Director decided the seriousness of the health and safety breach, and the employee’s current written warning for a separate conduct incident, justified dismissal.
Mr Murtagh brought a claim of Unfair Dismissal, alleging that he was unfairly singled out and dismissed for using the phone, when it was common practice, and he was not driving ‘at speed’. His evidence included two statements from former colleagues, one of whom admitted to using a phone while their forklift was stationary, and the other who explained he had left the company after being informed of an investigation into his mobile phone use. Mr Murtagh conceded the use of a phone while operating a forklift was a dangerous practice.
Health and Safety Authority guidance to employers confirms that mobile phones should never be used while operating a forklift. The employer defended the claim by describing how the dismissal was procedurally fair, in line with the Code of Practice on Grievance and Disciplinary Procedures, and the dismissal outcome was proportionate with the seriousness of the health and safety breach.
WRC Decision
The WRC Adjudication Officer considered the evidence from both parties then determined that the use of the phone was ‘extremely dangerous’ and therefore justified a dismissal for the reason of conduct, and the procedure followed was reasonable. He concluded that the dismissal was fair.
Takeaways for Employers
Employers should feel confident about following fair and reasonable procedures to address safety concerns. Clear, reliable policies help to protect the best interests of employees and employers.
Bright Contracts provides employers with template HR documents which can be easily tailored to your specific needs. Our resources include comprehensive policies, helpful guidance notes, and useful supporting documents. Visit our website or talk to a member of our team to find out more about the support we offer.
Working Time ‘Fowl Ups’ for Chicken Business
Background
The complainant, Suman Bhurtel, brought 6 claims to the WRC about his former employer Chicken Castle Limited Chicken Club – 5 for violations of Working Time regulations and 1 for National Minimum Wage underpayment. The respondent provided a defence for all 6 claims so the WRC Adjudication Officer needed to determine the validity of each claim.
The complainant’s working time claims referred to: working Sundays but not receiving a Sunday premium; working public holidays but not receiving an extra payment; under payment of annual leave; not receiving rest periods he was entitled to; working an average of 70 hours per week; and being paid an hourly rate below the National Minimum Wage.
The respondent defended these claims using the following arguments: the complainant did not work Sundays; the complainant did not work public holidays; the complainant was paid in cash for annual leave; the complainant worked 39 hours per week; and the hourly rate was not below the National Minimum Wage.
WRC Decision
For each of the claims, the WRC Adjudication Officer concluded that the complainant provided credible and clear evidence. The lack of documentary evidence provided by the respondent was criticised and the excuses, such as the Company Secretary not being able to access the shop where records were kept, were not acceptable.
Each claim was judged to be well founded and therefore the respondent was ordered to pay compensation to the claimant.
Takeaways for Employers
This case confirms the importance of employers following the Working Time and National Minimum Wage legislation and keeping the required records.
Bright Contracts clients have access to a legally compliant Employee Handbook policies, including a template Hours of Work and Rest Periods Policy. Please contact us if you would like more information.
€1,000 Lesson on Fair Dismissal Procedures
In this recent case, the complainant’s former employer was ordered to pay €1,000 compensation due to the dismissal process followed – and the amount could have been much higher...
Background
The complainant, Mr Grzegorz Grygier, started employment with Ideal Fire Limited in January 2022. He passed his 6-month probation on time and no concerns had been raised about his performance before he was invited to a meeting with Mr Ray Dooley, Company Director, in January 2023. During this meeting, Mr Grygier’s employment was terminated. The reason given was performance, due to an issue with a gas suppression system.
During the WRC hearing, Mr Dooley confirmed that no formal investigation had occurred, or a Disciplinary hearing, and he had not raised any issues with the complainant prior to the dismissal meeting.
Training records appeared to show only a limited amount of training, which may not have included gas suppression systems, and there had been no negative consequences to the company due to the incident.
The company representative confirmed the dismissal was due to the gas suppression system, but later it was suggested that the reason was instead due to an absence incident. No process had been followed regarding this absence, and it had not been referenced during the dismissal meeting.
WRC Decision
The WRC Adjudication Officer concluded that no investigation or Disciplinary process had been followed, the complainant was not given the opportunity to state his case, and he was not afforded the right to representation. Therefore, she found the dismissal to be procedurally unfair. The complainant’s case succeeded.
Following the Unfair Dismissal finding, the Adjudication Officer considered the amount of compensation to be ordered. The complainant had found employment a week after his notice period expired, and this new job included a higher rate of pay. The Adjudication Officer decided that the Respondent should pay €1,000 in compensation. If the complainant had not been so successful in quickly obtaining a better paid role, the compensation ordered could have been considerably higher!
Takeaways for Employers
This case confirms the importance of following fair Disciplinary procedures. If a reasonable process had taken place, the sequence of events could have been very different, potentially avoiding a claim happening at all.
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
Case Law: Big Fine for Not Providing Employment Documents!
A Dental Technician was awarded over €13,000 after her claims, of not being provided with written employment terms, Unfair Dismissal, and lack of notice pay, were upheld.
The negative consequences of not providing appropriate employment documents were highlighted in this recent Workplace Relations Commission case (ADJ-00034847).
Background
The complainant, Sarah O’Connor, worked as a Dental Technician for the respondent, Cas Dental.
O’Connor alleged that she had not received a written statement of her terms of employment, or a disciplinary procedure, or an employee handbook.
The complainant also explained that she did not receive a letter inviting her to the dismissal meeting. The dismissal meeting lasted about a minute. She was not given notice pay or the right to appeal.
Defence
Mr Colum Sower, a director of the respondent, explained that he thought he had a period of one year to issue an employment contract and this was his understanding based on advice he had received from the Small Business Association.
Mr Sower gave evidence that he issued the complainant with verbal warnings and a written warning before the dismissal, although there was no final written warning or formal improvement plan.
A notice payment was not made, but the complainant was given a payment for good will.
The respondent accepted the procedure used was not perfect but argued that the complainant had not met the required performance standards and there are serious consequences of not meeting standards in the medical profession.
WRC Decision
The WRC Adjudicator found that the claim of not being issued with written terms of employment was well founded. The respondent was ordered to pay compensation of four weeks’ remuneration to the complainant.
The claim of lack of notice pay was also upheld and the WRC Adjudicator ordered the respondent to pay one week’s remuneration to the complainant.
The WRC Adjudicator concluded that the Unfair Dismissal claim was well founded.
There were breaches of the Code of Practice on Grievance and Disciplinary Procedures, including no opportunity for representation at the dismissal meeting, and serious procedural flaws. The Adjudicator concluded that no reasonable employer would have dismissed the complainant in the circumstances and in this manner. The respondent was ordered to pay €12,000 compensation to the complainant.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. The excuse of receiving incorrect advice was not accepted by the WRC Adjudicator.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
It is also important to understand legal obligations relating to notice pay.
Bright Contracts includes a legally compliant template contract clause about notice.
Finally, failure to follow reasonable procedures can result in serious consequences. In the O’Connor v Cas Dental Case, the respondent suffered reputational damage and was ordered to pay significant amounts of compensation.
Bright Contracts has a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
WRC Inspections: What you need to know
WRC inspectors carry out employment rights compliance inspections and associated enquires. In general, an employer will get advance notice of an inspection. In some instances, an inspector has the right to show up unannounced.
Inspectors have the following powers:
- To inspect and take copies of any documents or records
- To remove any books, documents, or records and retain them for such period as the inspector considers necessary for the purposes or their functions under the Workplace Relations Act 2015
- To require any person at the place of work or premises to produce such books, records or documents as the inspector may require for the purposes of their functions under this Act
- To examine any person who they believe to be or have been an employer or employee, and to require such person to answer questions as the inspector may ask relating to the employment.
Preparing for an inspection
Employers should always be prepared for a WRC inspection as these may happen at any stage.
Employers Checklist:
- Employers’ registration number with Revenue Commissioners
- A list of all employees: full names, addresses, and PPS numbers
- Dates of commencement and dates of termination of employment
- Written terms of employment for each of the employees
- Employee’s job classification
- A record of annual leave and Public Holidays took by each employee
- Hours of work for each employee (start and finish time)
- Payroll details: gross to net, rate per hour, overtime, deductions, commission, bonuses, service charges, etc.
- Evidence that Employees were provided with pay slips
- A register of any employees under 18 years of age
- Details of any board and lodgings provided
- Employment permits or evidence that permit is not required as appropriate for non-EEA nationals
The Inspection
Reasons:
- Response to alleged non-compliance
- WRC compliance campaigns- sector/legislation specific
- Routine inspections
Conduction of the inspection
The inspection will carry out an interview with the Employer or their representative. At this stage, all relevant records will be requested, calculated, and examined.
After examining the records, the inspector will interview a sample of employees to gather additional information. These findings will be shared with the employer.
If it appears that all is compliant, the inspector will issue a letter concluding the inspection.
Examining the records
Accurate records can protect employers from false allegations
The inspector will examine a sample of records over a period of one year prior to the examination. They will then determine if they should examine further records within the previous years from what they see in the first records.
Examples of inspection Offences
- Failure to pay the National Minimum Wage rate
- Failure to keep employment records for a period of 3 years
- Failure to give a statement of wages (e.g. payslip)
- Employing a person who is not an EEA or Swiss national without a valid employment permit or other valid permission to work.
Related Articles
The WHO?WHAT?WHERE? and WHY? Of The WRC
Hiring Young People in Ireland
Young employees are people aged 14 to 18, who work for an employer. As young workers are generally in full-time education, they are protected by a different employment law than adult workers. This is to make sure their work does not put their health or education at risk.
Restrictions on Employing 14 & 15 Year-Olds
By law, children ages 14 and 15 cannot be employed in regular full-time jobs.
However, they can:
- Do light work during the school holidays
- Take part in an approved work experience or educational program
- Work in film, culture, advertising, or sport
Working Hours for 14 & 15 Year-Olds
Outside school term time
Can work a maximum of 35 hours a week or up to 40 hours if they are on approved work experience.
During school term time
Children aged 14 are not allowed work during school time. Children aged 15 can do 8 hours of light work a week.
Restrictions on Employing 16 & 17 Year-Olds
Young people aged 16 and 17 can work a maximum of 8 hours a day, up to 40 hours a week.
Young people are only allowed to work between 6 am and 10 pm.
Paying Young Employees
All employees have a right to get a payslip. A payslip is a written statement from the employer that explains your total pay before tax, and all details of any deductions from pay.
Minimum Wage
Since 1 January 2022, the national minimum wage is €10.50 per hour. However, not everyone is automatically entitled to get this.
Aged 20 and over- €10.50 an hour
Under18 - €7.35
Aged 18 - €8.40
Aged 19 - €9.45
Your employer can pay you more than the minimum wage if they want, but they are not required to by law.
Employers’ Responsibilities
Employers must keep records for every employee under 18, including:
- The employee’s full name
- The employee’s date of birth
- The employee’s starting and finishing times for work
- The wage rate and total wages paid to the employee
The employer must keep these records for at least 3 years.
Employers must also give employees aged under 18 a copy of the official summary of the Protection of Young Persons (Employment) Act, and other details of their terms of employment within one month of taking up a job.
Employers with employees under 18 must also display the official summary of the Act in their workplace, where it can easily be read by staff.
Breaches of the Protection of Young Persons (Employment) Act
Employers who are found guilty of an offense under the Protection of Young Persons (Employment) Act can be fined up to €1,904.61 and an extra €317.43 a day for a continuing offence.
Related Articles:
Employee Inductions: The Complete Guide
The WHO?WHAT?WHERE? and WHY? Of The WRC
The Workplace Relations Commission, or as they are more commonly referred to, the WRC, are a body which companies discuss in hushed tones as we associate them with discrimination cases but do we all know exactly WHO they are and WHAT they do besides being the deciding body on employment law cases? I don’t think many of us are sure, which is why our blog post will dive into the WHO?WHAT?WHERE? and WHY? Of The WRC.
Established on the 1st of October 2015, The Workplace Relations Commission (WRC) is an independent, statutory body which is Irish government-operated, which decides cases of alleged discrimination under Irish equality legislation. It was established under the Workplace Relations Act 2015 which reforms the State’s employment rights and industrial relations structures to deliver a better service for employers and employees.
Previously there were 5 separate bodies which dealt with complaints and disputes relating to industrial relations, employment law and employment equality but under the new system there are now 2 statutory bodies, namely The Workplace Relations Commission and the Labour Court. The Commission has a board consisting of a chairperson and 8 ordinary members appointed by the Minister for Enterprise, Trade and Employment.
The WRC provides information on employment law, equality and industrial relations to employees, employers and representative bodies of employees and employers. The function of the WRC is to provide advisory and conciliation services. Upon request, the Advisory Service engages with employers, employees and their representatives to help them to develop effective industrial relations practices, procedures and structures. This assistance could include reviewing or developing effective workplace procedures in areas such as grievance, discipline, communications and consultation.
Conciliation is a voluntary process where the parties to a dispute agree to avail of a neutral and impartial third party who will assist them in resolving their industrial relations differences. How the WRC assists in this situation is they will provide an Industrial Relations Officer to chair negotiations with the view of steering the discussions and exploring possible solutions in a non-prejudicial fashion. Solutions are reached only by consensus, hence the outcome is voluntary.
WRC inspectors visit workplaces and carry out inspections of employer’s records to ensure compliance with employment and equality legislation. An inspection may arise as a result of a complaint being received of alleged non-compliance, a campaign focussing on a specific sector or a particular piece of legislation, or it may simply be a routine inspection. Where breaches of legislation have been found, the inspector may, depending on the legislation involved, issue either a compliance notice or a fixed payment notice to the employer.
The WRC also has responsibility for:
• promoting the improvement of workplace relations, and maintenance of good workplace relations,
• promoting and encouraging compliance with relevant enactments,
• providing guidance in relation to compliance with codes of practice approved under Section 20 of the Workplace Relations Act 2015,
• conducting reviews of, and monitor developments as respects, workplace relations,
• conducting or commissioning research into matters pertaining to workplace relations,
• providing advice, information and the findings of research conducted by the Commission to joint labour committees and joint industrial councils,
• advising and apprising the Minister in relation to the application of, and compliance with, relevant enactments, and
• providing information to members of the public in relation to employment
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- Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
WRC Annual Report 2017 – The Facts and Figures
The Work Place Relations Commission have published their third annual report, outlining the key performance metrics relating to complaints filed and decisions made across the employment realms.
One of the bigger achievements made by the WRC is a dramatic reduction in the length of time it takes to get a case to resolution. When the WRC was established in October 2015 it could take a case up to 2 years to secure an outcome whereas now, once submissions are received, it is taking less than 6 months.
Other Key Facts
• €1.8 million was recovered in unpaid wages; up €300,000 on the previous year
• 4750 workplace inspections were carried out, either announced or unannounced with over 99,000 employees covered by these inspections
• 14,001 complaints were received by WRC relating to:
- Pay – 27%
- Unfair Dismissal - 14%
- Discrimination and Equality - 11%
- Terms and Conditions of Employment – 8%
• Over 52,000 calls were received on the WRC information hotline, with just under half of these relating to employment permit queries.
• There were 4,370 adjudication hearing’s; up 24% on 2016
It is now almost three years since the formation of the WRC, and from the above figures it is clear that they are well into their stride and making significant inroads in terms of their objective of promoting the improvement of workplace relations, encouraging compliance with relevant employment and equality legislation. As such it is imperative that employer’s have the proper records in place in case of an inspection.
Solution
Bright Contracts allows the user to create and customise contracts of employment and company handbooks, this covers part of your obligation as an employer under current Employment Legislation.
To book a free online demo of Bright Contracts click here.
To download your free trial of Bright Contracts click here.
How long should you retain employee data under GDPR?
The General Data Protection Regulation (GDPR) will come into force on 25th May 2018, legislation with new rules and guidelines on how to protect and process personal data. Employee personal data held may include: name, address, phone number, email address, emergency contact details, PPS number, bank account details etc.
The GDPR requires that when retaining and processing personal data there must be lawful reasoning for doing so. In terms of processing employee data employers are likely to rely on a number of lawful reasons, mainly: to fulfill contractual obligations, legal obligations or other legitimate interests. Under data protection legislation employee data should be kept for no longer than is necessary, for the purpose that it was retained. However, when deciding how long to retain personal data employers should be guided by employment legislation.
So how long should I retain employee data?
Written Terms of Employment – 1 year
Employers must retain a copy of this statement throughout the employee’s employment and for one year after termination at a minimum.
Payroll details and Payslips – 6 years
Records, calculations and documents relating to the value of benefits for employees must be kept for 6 years in the event of an audit by Revenue. The WRC may also inspect these in an audit and seek evidence that employees are supplied with payslips.
Hours of Work – 3 years
Details of days and hours worked each week, annual leave and public holidays taken and payment received for same. Rest break records and/or records of notification of employees being fully informed about rest break entitlement and procedures if rest break is unable to be taken.
Maternity and Adoptive Leave Records – none
While there is no set period of the retention of data on maternity leave or adoptive leave records, claims can be made within 6 months of employers being informed of an issue giving rise to a dispute or extended to 12 months in exceptional circumstances.
Parental Leave – 8 years
Records of Parental Leave, including the period of employment of each employee and the dates and times of the leave taken, must be retained for 8 years.
A more detailed list of Employee Record Keeping Requirements can be viewed here.
Where legislation gives no guidance on record keeping requirements, employers should carefully predetermine, and include in any employee privacy notice, how long and the grounds they will use for retaining that data. For example; an employer may decide to retain all performance review records for the entire duration of an employee’s employment to monitor employee performance.
Whatever the reasoning behind retaining employee data – whether it be legal or other business reasons, employers need to ensure they have a clear policy outlining their reasoning, that this is easily accessible to employees and that the policy is consistently applied.
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Is it discrimination to top up maternity pay but not paternity pay?
September 2016 saw the introduction of Paternity Leave, that for the first time ever allowed fathers/partners to take two weeks paid leave on the birth of a child / placement of a child for adoption. Paternity Leave is paid at the same rate as Maternity Pay, currently €235 per week*, leaving it up to employers to decide whether or not they wish to top-up pay during the two weeks leave. The question then arose that if by topping up maternity leave, would an employer by default have to top up paternity pay?
A recent Workplace Relations Commission (WRC) case involving a transport company, provides useful guidance on the answer to this question.
In this case a male employee brought a case under the Employment Equality Act claiming discrimination on the grounds of gender due to the fact that the employer topped up maternity pay but did not top up paternity pay.
However the WRC Adjudicator held in favour of the Company, stating that maternity leave is different to paternity leave and that “the special protection afforded to women in connection with pregnancy and maternity is embedded in European and Irish law”. The Adjudicator concluded that the employer was entitled to make special provisions for women at the time of maternity leave and was protected in that regard by the Employment Equality Acts.
Conclusion
This case gives the green light to employers who wish to offer a maternity top up but not offer the same for paternity leave. Whatever it is you decide on, employers are advised to have clear paternity and maternity leave policies in place that is accessible to all employees.
*The rate of maternity/paternity pay will increase to €240 per week from end of March 2018.
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