WHAT TO KEEP AN EYE OUT FOR…
First Aid in the Workplace – Recent Changes
Occupational First Aid or OFA as it was known as, was administered by the Occupational First Aid Assessors Agent (OFAAA) until 31st May 2018. Providers offering QQI Level Occupational First Aid (OFA) were advised that, from 1st June 2018, the Health and Safety Authority (HSA) no longer recognises the component (Award Code 5N1207) as meeting the requirements for occupational first aid in all workplaces. This change has arisen from the HSA's decision to recognise the Prehospital Emergency Care Council (PHECC) First Aid Response Education and Training standard (FAR).
Occupational First Aiders
The HSA will recognise training and assessment relating to QQI’s Level 5 OFA (5N1207) that took place up to 31st May 2018. That recognition will be for a 2 year period. Refresher certificates issued by recognised training providers up to 31st May 2018 will also be recognised by the HSA for a 2 year period. Thereafter existing occupational first aiders can apply to have their qualifications individually assessed (at refresher courses) by a participating PHECC recognised institution (RI) in accordance with the RI’s Recognition of Prior Learning (RPL) policy and procedures.
OFA Instructors
The FAR Standard provides for the Recognition of Prior Learning (RPL), this facilitates the transition of OFA instructors too FAR. It is important that those OFA instructors, who have not already done so, should without delay apply to a PHECC Recognised Institution (RI), approved to provide the FAR instructor course, to have their qualification’s assessed (usually a one date transition/conversion course) with a view to becoming FAR certified. The current list of RIs can be found at www.phecit.ie.
What is First Aid Response (FAR)?
First Aid Response or FAR is PHECC’s newest education and training standard. It’s a foundation first aid course that trains course participants to provide first aid for a person who becomes suddenly unwell or injured until the arrival of emergency medical services. FAR includes the full Cardiac First Response Community standard also.
Who are first aid Responders?
A First Aid Responder may be a healthcare practitioner or a member of the public (Employee) who has undertaken a First Aid Response course. The First Aid Responder will be taught how to assess and manage patients in accordance with the PHECC FAR standard and clinical practice guidelines (CPGs).
What can I expect on a FAR course?
Only PHECC recognised institutions (RI’s) can deliver a FAR course, at present confined to a maximum of 6 people per instructor. The course should take no less than 18 teaching contact hours (averaging 6 hours per day), but can also be delivered on a modular basis e.g. over successive weekends. It will be delivered by a certified FAR instructor who will lead and guide you through the course. You can expect the course to be delivered by a combination of presentations, demonstrations and lots of practical sessions. The CFR part of the course takes about 4-5 hours and is DVD led. The assessment will be skills based and a short multiple choice question exam designed to reinforce the knowledge and skills learnt on the course.
Will I get a certificate?
Yes all successful course participants must be given a joint PHECC/recognised institution FAR card/certificates. The certificate will expire after 2 years when you may recertify.
Refresher Training?
For the PHECC FAR award, the refresher course is currently not less than 12 hours including assessment but excluding breaks, averaging 6 hours instruction per day. Again the course is limited to 6 people per instructor. Where training for an occupational first aider lapses, PHECC FAR refresher training is required if the lapse is less than 30 days, otherwise the full 3 day training is required.
All successful course participants will be given a joint PHECC/recognised institution FAR card/certificates. The certificate will expire after 2 years when you may recertify again.
What is an AED?
A defibrillator is a device that delivers an electric shock to the heart muscle through the chest wall in order to restore a normal heart rate.
An automatic external defibrillator (AED) is a portable defibrillator designed to be automated such that it can be used by persons without substantial medical training who are responding to a cardiac emergency.
Are occupational first aiders trained in the use of AED?
Yes, AED was part of the Cardiac First Response (CFR) Unit of the QQI Level 5 OFA and is part of the PHECC FAR standard and first aiders are trained in its use.
Are Employers required to have an AED?
No legal obligation, but it would be good practice to have one, where a risk assessment determines so.
Do I have to have a first aid room at my workplace?
Premises must have one or more first aid rooms if the Safety Statement risk assessment shows that it is necessary and based on the following criteria:
When do occupational first aiders need additional training?
Occupational first aiders may need additional specialised training if a work place has Employees exposed to any special hazards such as:
Content of FAR Course
Tony McDonnell - Health and Safety Consultant
Adare Human Resource Management
With over 32 years as a Firefighter-Paramedic and Operational Fire Officer, a lot of experience has been acquired in all aspects of fire, rescue and medical emergencies. This has stood to Tony when delivering fire safety training or offering fire safety consultancy and first aid responder (workplace) courses.
Tony studied Health, Safety and Welfare in UCD. Tony is a Chartered Member status with IOSH. As a result, Tony is now a proficient safety consultant compiling safety statements, risk assessments and control measures.
Tony is also a trainer in key occupational related courses, including fire safety, first aid responders, manual handling, people handling, abrasive wheels, safety management, risk assessing, fire extinguishers, cardiac first responder, paediatric first aid.
Tony, Chartered Member of IOSH (CMIOSH) Member of IFE (MIFireE) P.Cert in Env.Man
Tony can deliver training on a range of topics including but not limited to;
Contact details:
Phone: 01 561 3594 / 086 011 5026
Email: tmcdonnell@adarehrm.ie
HSE Cautious on Section 39’s Pay Restoration
In a comprehensive document issued by the HSE to related stakeholders entitled “Pay Restoration Section 39 Funded Organisations” leaked through several sources of the media the HSE have highlighted the significant IR complexities involved in its attempt to rectify pay anomalies within Section 39 organisations when compared to other non S39 health workers and in particular the health care sectors. The motivation for the HSE to finally recognise the extent of these difficulties and to seek out a solution was on foot of threatened industrial action by SIPTU and FORSA last February, which was averted at the last hour through the intervention of the WRC.
The current conundrum according to the HSE whilst many of these Section 39 organisations are fully funded by the HSE the workers involved are not employed by the State and in that context incremental pay is not funded. An added complication is that prior to FEMPI these workers were treated the same as their State employed colleagues. The union argument now is not just one of pay restoration by also pay retrospection.
In compiling the report the HSE says that Section 39 agencies were asked to document when, if any restoration of previous pay reductions were implemented and detail the timeline of these events. Twelve agencies have made some form of restoration of pay reductions during the period 2016 to 2018. A number of agencies documented a series of measures that must yet be implemented with many citing funding difficulties being the reason for not restoring to date.
According to the draft report total pay restoration costs to 2018, as assessed by those agencies amount to €15.449m.
This amount does not include other funding requests such as pay related recommendations referred by the Labour Court or retrospective payments for pay restoration payments already made. The report goes on to state that some of these measures are outside the scope of this exercise which is specifically addressing the costs of restoring previous pay reductions that were applied. In order word “retrospection” does not appear to be in scope but most certainly involves the core basis of the unions claim.
The agency assessment for total funding expected from all sources amounts to €50.208m of which €39.715m is expected from the HSE. Included in this sum are funding requests for pay restoration up to 2020 by some agencies, retrospective payments towards restoration payments already incurred, Labour Court recommendations and general funding requests for which no specific detail was provided.
Based on information provided in thirty-eight assessable agency returns, the HSE made an assessment for expected pay restoration costs of €34.439m. A number of assumptions underlie this estimate. Scaling these costs up to include the fifty pilot organisations, the projected cost estimation is €37.735m. Applying the same allocation method to the total 302 agencies which hold service level agreements would amount to €67.881m.
The context and direction in which the HSE appear to be setting out their stall suggests that on foot of an extensive and formal information gathering exercise with thirty-eight S39 agencies on a self-assessment basis, the HSE will fund restoration in situations whereby the HSE are satisfied the organisation in question does not have the ability to fund such pay restoration. It appears that those agencies who in the eyes of the HSE can fund restoration won’t get HSE financial assistance to do so. However, the thorny and critical question of pay retrospection remains silent. This is likely to be a source of dispute in a context in which it seems the retrospective can has already kicked to the end of the road.
Compensation for Dad who was sacked whilst on Paternity Leave
A New Dad was sacked by his employer just 11 days after the birth of his new-born baby and while on paternity leave.
At a meeting on 12th January 2017, the horticulturalist was first congratulated by his boss on the new arrival but then he proceeded to tell him that he was being made redundant.
The shocked employee asked whether there were any other roles open to him, and he was told there were not.
The boss then told the man – who was employed as a Plant Area Manager and Buyer for the Garden Centre- to clear his desk and leave immediately.
The man sued for unfair dismissal and the Workplace Relations Commission (WRC) has upheld his claim and ordered his former employer to pay €2,461.
WRC Adjudication Officer, Pat Brady has described the employer’s conduct in the case as “seriously unacceptable”. The compensation amount would have been much more as the worker’s losses were minimal due to him securing alternative employment on 3 March 2017.
This was as a result of ‘extremely diligent job seeking’ where the man now enjoys a higher wage than he did with the garden centre.
The man pointed out to the WRC hearing that any dismissal while on paternity leave is automatically unfair on foot of section 20 of the Paternity Leave and Benefit Act, 2016.
The employer told the WRC that he was not aware that the employee being on paternity leave was an issue and the decision to make the man redundant was due to a re-organisation of the business.
The re-organisation involved making the man redundant and creating a new position of ‘Assistant Manager’.
WRC Adjudication Officer, Pat Brady said that the employer in the case had adopted a cavalier attitude to the Paternity Leave and Benefit Act.
The employer stated that a decision was taken in October 2016 to make the horticulturalist redundant and Brady said that it is incredible that decision was taken but no conversation took place with him about it, or the fact that he may have been at risk of it.
Brady added: “Then, in circumstances which could scarcely have been more insensitive, he was given one day’s notice of a meeting at which his employment is terminated and he is told to leave the premises and not to return.”
He added: “However, it is the total absence of any procedures which is of more concern; the lack of proper or any notice, the lack of a selection procedure or consideration of alternatives.”
Brady stated that the credibility of the employer is further put in doubt by the fact that the beneficiary of the complainant’s dismissal was the employer’s son. Brady said: “He may well be qualified for a new role in the business but that does not relieve the respondent of the need to follow a fair procedure in respect of the complainant.”
Brady added: “He did not do so, and indeed his conduct was at the extreme edge of unfairness, as well as insensitivity to the complainant.”
Brady also stated that it was clear that the employee “was motivated by what he considered to be the injustice of the respondent’s behaviour towards him and a finding that he was unfairly dismissed may be of value to him and in respect of his curriculum vitae and future career”.
The Employment (Miscellaneous Provisions) Bill 2017 is at the Fifth Stage of the DáilThe Employment (Miscellaneous Provisions) Bill 2017, brought by Employment Affairs and Social Protection Minister Regina Doherty, T.D., is now in the fifth stage of the Dáil Eireann. This is where the final statements on the Bill are made and it is set down for second stage in the Seanad (also known as final stage).
The Zero Hour Contracts Bill outlines the “Prohibition of zero hours working practices in certain circumstances and minimum payment in certain circumstances”. Key Points to be aware of include;
Points for Employers to complete:
What Employers need to know about dealing with Intoxicated Staff
Being under the influence of an intoxicant in the workplace can lead to accidents, poor performance and behavioural difficulties, and may be dealt with by employers as a disciplinary issue.
All employees must ensure that they are not under the influence of an intoxicant to the extent that they are in such a state as to endanger their own safety, health or welfare at work, or that of any other person.
Employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, including risks created by employee substance abuse. Having a policy and procedure in place to test employees for intoxicants may be merited.
There is no statutory requirement for employees to undergo testing in relation to being under the influence of intoxicants; similarly there is no requirement for employers to test staff for intoxicants.
Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the employment policies and procedures such as the employee handbook, or with the employee’s express consent. Even then, the testing must be proportionate and reasonable.
Testing
Where the employee is consenting to the testing, the organisation must notify the employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.
There are three main types of testing that organisations can carry out:
This should be conducted in conjunction with an occupational medical advisor. This is to be applied in circumstances where any employee appears to be under the influence of an intoxicant and therefore would be in breach of the policy within the organisation.
The judgement as to whether with-cause testing needs to be applied can be based on a number of factors including the following: apparent disorientation, unsteadiness, slurring of words, smell of alcohol, admitted or observed taking of illegal or non-prescribed drugs or volumes of alcohol.
It is advisable that in all cases, prior to an employee being requested to undergo with-cause testing procedures, that more than one person will have submitted an opinion as to the existence of circumstances or conditions sufficient to warrant testing – for example, a manager on duty at the time, or staff member.
An organisation should have a clear and detailed drug and alcohol testing policy in place should this testing be required.
Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal.
Like all other policies, it should be very clearly worded and easy to comprehend.
Organisations should carefully consider whether there is a need to carry out such testing, as the third-party forums may not look favourably on random testing of employees just on a whim.
Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have huge impact.
Unfair Dismissal Case
The below recent case shows the impact of an organisation not abiding to its own policies and procedures.
An ex-employee of a regional airport was awarded over €5,000 in the Labour Court over a case of unfair dismissal.
The worker had been fired from his role as a search unit officer, with the reasons given for the dismissal including “his support for the use of cannabis for medicinal use” and “his passionate advocacy of an illegal drug and his declared position as a cannabis activist”.
The worker took a case believing that he had been sacked for his “political beliefs” on cannabis and sought redress.
The Labour Court did find flaws in how the company approached the dismissal.
It said: “Having carefully considered the facts as presented to the court, the court is satisfied that the respondent proceeded to dismiss the complainant without informing him that it had deemed his actions as ‘gross misconduct’ contrary to its disciplinary procedure.
“Instead it relied on the outcome of the disciplinary hearing to justify summary dismissal. Furthermore, and against the company’s substance abuse policy, no referral was made to the chief medical officer on his behalf.”
Because of this, a ruling was made that this amounted to unfair dismissal. However, despite the complainant wishing to be reinstated to his job, the Labour Court determined that wasn’t the appropriate course of action, and awarded him compensation instead.
It is clear that while in some circumstances it may be reasonable to dismiss an employee who attends for work under the influence of alcohol and/or drugs, or who fails an intoxicants test, employers still need to adhere to their workplace policies.
In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances.
Factors such as risk to safety, the level of responsibility, if the employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.
Occupational First Aid or OFA as it was known as, was administered by the Occupational First Aid Assessors Agent (OFAAA) until 31st May 2018. Providers offering QQI Level Occupational First Aid (OFA) were advised that, from 1st June 2018, the Health and Safety Authority (HSA) no longer recognises the component (Award Code 5N1207) as meeting the requirements for occupational first aid in all workplaces. This change has arisen from the HSA's decision to recognise the Prehospital Emergency Care Council (PHECC) First Aid Response Education and Training standard (FAR).
Occupational First Aiders
The HSA will recognise training and assessment relating to QQI’s Level 5 OFA (5N1207) that took place up to 31st May 2018. That recognition will be for a 2 year period. Refresher certificates issued by recognised training providers up to 31st May 2018 will also be recognised by the HSA for a 2 year period. Thereafter existing occupational first aiders can apply to have their qualifications individually assessed (at refresher courses) by a participating PHECC recognised institution (RI) in accordance with the RI’s Recognition of Prior Learning (RPL) policy and procedures.
OFA Instructors
The FAR Standard provides for the Recognition of Prior Learning (RPL), this facilitates the transition of OFA instructors too FAR. It is important that those OFA instructors, who have not already done so, should without delay apply to a PHECC Recognised Institution (RI), approved to provide the FAR instructor course, to have their qualification’s assessed (usually a one date transition/conversion course) with a view to becoming FAR certified. The current list of RIs can be found at www.phecit.ie.
What is First Aid Response (FAR)?
First Aid Response or FAR is PHECC’s newest education and training standard. It’s a foundation first aid course that trains course participants to provide first aid for a person who becomes suddenly unwell or injured until the arrival of emergency medical services. FAR includes the full Cardiac First Response Community standard also.
Who are first aid Responders?
A First Aid Responder may be a healthcare practitioner or a member of the public (Employee) who has undertaken a First Aid Response course. The First Aid Responder will be taught how to assess and manage patients in accordance with the PHECC FAR standard and clinical practice guidelines (CPGs).
What can I expect on a FAR course?
Only PHECC recognised institutions (RI’s) can deliver a FAR course, at present confined to a maximum of 6 people per instructor. The course should take no less than 18 teaching contact hours (averaging 6 hours per day), but can also be delivered on a modular basis e.g. over successive weekends. It will be delivered by a certified FAR instructor who will lead and guide you through the course. You can expect the course to be delivered by a combination of presentations, demonstrations and lots of practical sessions. The CFR part of the course takes about 4-5 hours and is DVD led. The assessment will be skills based and a short multiple choice question exam designed to reinforce the knowledge and skills learnt on the course.
Will I get a certificate?
Yes all successful course participants must be given a joint PHECC/recognised institution FAR card/certificates. The certificate will expire after 2 years when you may recertify.
Refresher Training?
For the PHECC FAR award, the refresher course is currently not less than 12 hours including assessment but excluding breaks, averaging 6 hours instruction per day. Again the course is limited to 6 people per instructor. Where training for an occupational first aider lapses, PHECC FAR refresher training is required if the lapse is less than 30 days, otherwise the full 3 day training is required.
All successful course participants will be given a joint PHECC/recognised institution FAR card/certificates. The certificate will expire after 2 years when you may recertify again.
What is an AED?
A defibrillator is a device that delivers an electric shock to the heart muscle through the chest wall in order to restore a normal heart rate.
An automatic external defibrillator (AED) is a portable defibrillator designed to be automated such that it can be used by persons without substantial medical training who are responding to a cardiac emergency.
Are occupational first aiders trained in the use of AED?
Yes, AED was part of the Cardiac First Response (CFR) Unit of the QQI Level 5 OFA and is part of the PHECC FAR standard and first aiders are trained in its use.
Are Employers required to have an AED?
No legal obligation, but it would be good practice to have one, where a risk assessment determines so.
Do I have to have a first aid room at my workplace?
Premises must have one or more first aid rooms if the Safety Statement risk assessment shows that it is necessary and based on the following criteria:
- Premises size
- Type of activity being carried out
- Frequency of accidents arising
- Existence of special hazards
- Distance from nearest appropriate medical facility.
When do occupational first aiders need additional training?
Occupational first aiders may need additional specialised training if a work place has Employees exposed to any special hazards such as:
- risk of poisoning by toxic substances, e.g. certain cyanides and related compounds
- risk of burns from corrosive or oxidising substances, e.g. hydrofluoric acid
- risk of accidental exposure to hazardous substances, e.g. toxic, irritant or asphyxiant gases, requiring oxygen for resuscitation
- Other specific risks identified in the Safety Statement
- Additional provisions in other regulations such as administration of oxygen
Content of FAR Course
- Patient Assessment
- Incident Procedures
- Cardiac First Response (Community)
- Common Medical Emergencies
- Injury Management and Shock
- Care of the Unconscious Patient
- Hypothermia and Hyperthermia
- Information Management
- Communications
- The Well Being of the First Aid Responder
Tony McDonnell - Health and Safety Consultant
Adare Human Resource Management
With over 32 years as a Firefighter-Paramedic and Operational Fire Officer, a lot of experience has been acquired in all aspects of fire, rescue and medical emergencies. This has stood to Tony when delivering fire safety training or offering fire safety consultancy and first aid responder (workplace) courses.
Tony studied Health, Safety and Welfare in UCD. Tony is a Chartered Member status with IOSH. As a result, Tony is now a proficient safety consultant compiling safety statements, risk assessments and control measures.
Tony is also a trainer in key occupational related courses, including fire safety, first aid responders, manual handling, people handling, abrasive wheels, safety management, risk assessing, fire extinguishers, cardiac first responder, paediatric first aid.
Tony, Chartered Member of IOSH (CMIOSH) Member of IFE (MIFireE) P.Cert in Env.Man
Tony can deliver training on a range of topics including but not limited to;
- Manual handling
- Patient/People handling
- First Aid Responder
- First Aid Responder Refresher
- Cardiac First Responder (AED)
- Fire Safety Management
- Fire Extinguisher training
- Evacuation Chair Training
- Abrasive Wheels Training
- Workplace Safety Representative Training
- Managing Safety Training
Contact details:
Phone: 01 561 3594 / 086 011 5026
Email: tmcdonnell@adarehrm.ie
HSE Cautious on Section 39’s Pay Restoration
In a comprehensive document issued by the HSE to related stakeholders entitled “Pay Restoration Section 39 Funded Organisations” leaked through several sources of the media the HSE have highlighted the significant IR complexities involved in its attempt to rectify pay anomalies within Section 39 organisations when compared to other non S39 health workers and in particular the health care sectors. The motivation for the HSE to finally recognise the extent of these difficulties and to seek out a solution was on foot of threatened industrial action by SIPTU and FORSA last February, which was averted at the last hour through the intervention of the WRC.
The current conundrum according to the HSE whilst many of these Section 39 organisations are fully funded by the HSE the workers involved are not employed by the State and in that context incremental pay is not funded. An added complication is that prior to FEMPI these workers were treated the same as their State employed colleagues. The union argument now is not just one of pay restoration by also pay retrospection.
In compiling the report the HSE says that Section 39 agencies were asked to document when, if any restoration of previous pay reductions were implemented and detail the timeline of these events. Twelve agencies have made some form of restoration of pay reductions during the period 2016 to 2018. A number of agencies documented a series of measures that must yet be implemented with many citing funding difficulties being the reason for not restoring to date.
According to the draft report total pay restoration costs to 2018, as assessed by those agencies amount to €15.449m.
This amount does not include other funding requests such as pay related recommendations referred by the Labour Court or retrospective payments for pay restoration payments already made. The report goes on to state that some of these measures are outside the scope of this exercise which is specifically addressing the costs of restoring previous pay reductions that were applied. In order word “retrospection” does not appear to be in scope but most certainly involves the core basis of the unions claim.
The agency assessment for total funding expected from all sources amounts to €50.208m of which €39.715m is expected from the HSE. Included in this sum are funding requests for pay restoration up to 2020 by some agencies, retrospective payments towards restoration payments already incurred, Labour Court recommendations and general funding requests for which no specific detail was provided.
Based on information provided in thirty-eight assessable agency returns, the HSE made an assessment for expected pay restoration costs of €34.439m. A number of assumptions underlie this estimate. Scaling these costs up to include the fifty pilot organisations, the projected cost estimation is €37.735m. Applying the same allocation method to the total 302 agencies which hold service level agreements would amount to €67.881m.
The context and direction in which the HSE appear to be setting out their stall suggests that on foot of an extensive and formal information gathering exercise with thirty-eight S39 agencies on a self-assessment basis, the HSE will fund restoration in situations whereby the HSE are satisfied the organisation in question does not have the ability to fund such pay restoration. It appears that those agencies who in the eyes of the HSE can fund restoration won’t get HSE financial assistance to do so. However, the thorny and critical question of pay retrospection remains silent. This is likely to be a source of dispute in a context in which it seems the retrospective can has already kicked to the end of the road.
Compensation for Dad who was sacked whilst on Paternity Leave
A New Dad was sacked by his employer just 11 days after the birth of his new-born baby and while on paternity leave.
At a meeting on 12th January 2017, the horticulturalist was first congratulated by his boss on the new arrival but then he proceeded to tell him that he was being made redundant.
The shocked employee asked whether there were any other roles open to him, and he was told there were not.
The boss then told the man – who was employed as a Plant Area Manager and Buyer for the Garden Centre- to clear his desk and leave immediately.
The man sued for unfair dismissal and the Workplace Relations Commission (WRC) has upheld his claim and ordered his former employer to pay €2,461.
WRC Adjudication Officer, Pat Brady has described the employer’s conduct in the case as “seriously unacceptable”. The compensation amount would have been much more as the worker’s losses were minimal due to him securing alternative employment on 3 March 2017.
This was as a result of ‘extremely diligent job seeking’ where the man now enjoys a higher wage than he did with the garden centre.
The man pointed out to the WRC hearing that any dismissal while on paternity leave is automatically unfair on foot of section 20 of the Paternity Leave and Benefit Act, 2016.
The employer told the WRC that he was not aware that the employee being on paternity leave was an issue and the decision to make the man redundant was due to a re-organisation of the business.
The re-organisation involved making the man redundant and creating a new position of ‘Assistant Manager’.
WRC Adjudication Officer, Pat Brady said that the employer in the case had adopted a cavalier attitude to the Paternity Leave and Benefit Act.
The employer stated that a decision was taken in October 2016 to make the horticulturalist redundant and Brady said that it is incredible that decision was taken but no conversation took place with him about it, or the fact that he may have been at risk of it.
Brady added: “Then, in circumstances which could scarcely have been more insensitive, he was given one day’s notice of a meeting at which his employment is terminated and he is told to leave the premises and not to return.”
He added: “However, it is the total absence of any procedures which is of more concern; the lack of proper or any notice, the lack of a selection procedure or consideration of alternatives.”
Brady stated that the credibility of the employer is further put in doubt by the fact that the beneficiary of the complainant’s dismissal was the employer’s son. Brady said: “He may well be qualified for a new role in the business but that does not relieve the respondent of the need to follow a fair procedure in respect of the complainant.”
Brady added: “He did not do so, and indeed his conduct was at the extreme edge of unfairness, as well as insensitivity to the complainant.”
Brady also stated that it was clear that the employee “was motivated by what he considered to be the injustice of the respondent’s behaviour towards him and a finding that he was unfairly dismissed may be of value to him and in respect of his curriculum vitae and future career”.
The Employment (Miscellaneous Provisions) Bill 2017 is at the Fifth Stage of the DáilThe Employment (Miscellaneous Provisions) Bill 2017, brought by Employment Affairs and Social Protection Minister Regina Doherty, T.D., is now in the fifth stage of the Dáil Eireann. This is where the final statements on the Bill are made and it is set down for second stage in the Seanad (also known as final stage).
The Zero Hour Contracts Bill outlines the “Prohibition of zero hours working practices in certain circumstances and minimum payment in certain circumstances”. Key Points to be aware of include;
- Five core terms of employment to be provided within five days of commencement of the employment relationship.
- Prohibition of zero hours except in certain limited circumstances such as emergency situations.
- Minimum payment to prevent the practice of calling Employees in to work but not providing them with work.
- Introduction of a banded hours' provision.
- Enhanced anti-penalisation protections for Employees.
Points for Employers to complete:
- Ensure procedures and checklists are in place to allow the core terms of employment be furnished within five days of the employment commencing, and ensure follow up with all other terms and conditions within two months.
- Identify if zero hours contracts are being used as they are only now allowed the case of emergency cover or short term relief work.
- Ensure banded hours contracts currently reflect the reality of the hours being worked to avoid the possibility of a claim before the WRC.
- Become aware of the anti-penalisation provisions in the Bill so as to ensure that they do not inadvertently penalise or threaten penalisation of an employee for asserting their rights.
What Employers need to know about dealing with Intoxicated Staff
Being under the influence of an intoxicant in the workplace can lead to accidents, poor performance and behavioural difficulties, and may be dealt with by employers as a disciplinary issue.
All employees must ensure that they are not under the influence of an intoxicant to the extent that they are in such a state as to endanger their own safety, health or welfare at work, or that of any other person.
Employers have a statutory obligation to take all reasonable steps to eliminate or reduce risks of unsafe work environments, including risks created by employee substance abuse. Having a policy and procedure in place to test employees for intoxicants may be merited.
There is no statutory requirement for employees to undergo testing in relation to being under the influence of intoxicants; similarly there is no requirement for employers to test staff for intoxicants.
Employers may carry out drug and alcohol testing only where it has been provided for in either the contract of employment, the employment policies and procedures such as the employee handbook, or with the employee’s express consent. Even then, the testing must be proportionate and reasonable.
Testing
Where the employee is consenting to the testing, the organisation must notify the employee in advance of the testing occurring, the extent of the testing which is to be carried out, and potential implications should there be a positive result received.
There are three main types of testing that organisations can carry out:
- Pre-employment testing
- Random testing
- With-cause testing
This should be conducted in conjunction with an occupational medical advisor. This is to be applied in circumstances where any employee appears to be under the influence of an intoxicant and therefore would be in breach of the policy within the organisation.
The judgement as to whether with-cause testing needs to be applied can be based on a number of factors including the following: apparent disorientation, unsteadiness, slurring of words, smell of alcohol, admitted or observed taking of illegal or non-prescribed drugs or volumes of alcohol.
It is advisable that in all cases, prior to an employee being requested to undergo with-cause testing procedures, that more than one person will have submitted an opinion as to the existence of circumstances or conditions sufficient to warrant testing – for example, a manager on duty at the time, or staff member.
An organisation should have a clear and detailed drug and alcohol testing policy in place should this testing be required.
Such a policy should include details in relation to intoxicants in the workplace, how an instance where there is a positive case of intoxicant will be dealt with, and the possible consequences of testing positive for such an intoxicant, that this may be considered to be gross misconduct, and will have consequences up to and including dismissal.
Like all other policies, it should be very clearly worded and easy to comprehend.
Organisations should carefully consider whether there is a need to carry out such testing, as the third-party forums may not look favourably on random testing of employees just on a whim.
Testing can be viewed upon more favourably in safety critical industries, where being under the influence of such an intoxicant may have huge impact.
Unfair Dismissal Case
The below recent case shows the impact of an organisation not abiding to its own policies and procedures.
An ex-employee of a regional airport was awarded over €5,000 in the Labour Court over a case of unfair dismissal.
The worker had been fired from his role as a search unit officer, with the reasons given for the dismissal including “his support for the use of cannabis for medicinal use” and “his passionate advocacy of an illegal drug and his declared position as a cannabis activist”.
The worker took a case believing that he had been sacked for his “political beliefs” on cannabis and sought redress.
The Labour Court did find flaws in how the company approached the dismissal.
It said: “Having carefully considered the facts as presented to the court, the court is satisfied that the respondent proceeded to dismiss the complainant without informing him that it had deemed his actions as ‘gross misconduct’ contrary to its disciplinary procedure.
“Instead it relied on the outcome of the disciplinary hearing to justify summary dismissal. Furthermore, and against the company’s substance abuse policy, no referral was made to the chief medical officer on his behalf.”
Because of this, a ruling was made that this amounted to unfair dismissal. However, despite the complainant wishing to be reinstated to his job, the Labour Court determined that wasn’t the appropriate course of action, and awarded him compensation instead.
It is clear that while in some circumstances it may be reasonable to dismiss an employee who attends for work under the influence of alcohol and/or drugs, or who fails an intoxicants test, employers still need to adhere to their workplace policies.
In addition, each case should be assessed on its own particular set of facts to decide what sanction is appropriate in the circumstances.
Factors such as risk to safety, the level of responsibility, if the employee has contact with the public should be taken into account in deciding whether or not the penalty of dismissal is a reasonable and proportionate response in the situation.
