WHAT TO KEEP AN EYE OUT FOR…
Here’s what Employers need to know about dismissing Employees on Probation
All Employees have the same rights when it comes to fair procedures and natural justice in relation to their termination of employment - including those on probation.
Probationary periods provide an opportunity for an Employer to assess, evaluate and train employees. The period also affords some protection for Employers as Employees who have less than 12 months’ continued employment do not have sufficient service in general, to take a case under the Unfair Dismissals Acts.
However, what is often overlooked by Employers is that Employees with less than a year’s employment can take a case under the Industrial Relations Act 1969, as there is no service qualification under this act.
This can lead to misunderstanding on the part of employers where they may believe they can terminate an employee’s contract of employment without following due process and not risk reprisal.
The Workplace Relations Commission (WRC) recently found in favour of a complainant under the Industrial Relation Act because she was not afforded fair procedure and natural justice.
While the Employee’s actions and behaviour contributed significantly to her dismissal, she was not afforded an opportunity to respond to her Employer’s complaints.
Complaints
The complainant was employed as a general assistant in a restaurant in January of last year. Her employment was terminated the following April.
At the end of March, she was asked to attend a meeting with her manager to discuss her poor performance and was given a letter outlining the concerns, which included her attitude towards supervisors, interaction with customers and drinking water in the food service areas as well as using her mobile phone without permission.
At this meeting, she was also advised her trial period was being extended until the end of April.
The complainant had received a copy of the employee handbook with her contract of employment when she started work, which outlined the company’s policy on phone use.
Upon commencement of employment, the complainant also attended training courses, at which basic hygiene rules about employees eating and drinking at the food service areas were outlined.
Following the meeting in March, the complainant was again observed drinking in the food service area and on her mobile phone in early April. It was also noted that she was finishing work before her shift was officially over.
Her supervisor made further complaints about her behaviour and another meeting was convened with the complainant in mid-April. It was at this meeting she was notified that she was no longer employed and was given her P45.
Compensation
However, while her behaviour contravened policies set out in the terms and conditions of her employment, the WRC noted that he had not received oral or written warnings prior to her dismissal. And, as noted by the WRC, she was not afforded an opportunity to respond to the complaints made against her.
On that basis, the WRC found in favour of the complainant in that, while her probation period was extended, she was not afforded fair procedures and natural justice. She was awarded €200.
This case highlights the need for an understanding on the part of employers that employees are still entitled to protections even during their probationary period.
Although the award in this case was small, there is time and costs involved on behalf of employers to defend such claims.
Employers must follow correct procedures when dealing with disciplinary issues and document the process correctly, or risk facing an unfair dismissal hearing and compensation payout.
Irish Human Rights and Equality Commission have issued Guidelines on Retirement and Fixed Term Contracts
The Irish Human Rights and Equality Commission (the ‘Commission’) is an independent body that accounts to the Oireachtas. It was established under the Irish Human Rights and Equality Commission Act 2014 (the ‘2014 Act’).
The Commission is Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures, and is Ireland’s national human rights institution.
In 2016, the report of the Interdepartmental Working Group on Fuller Lives was published. In its report, the Working Group recommended that the Department of Justice and Equality ask the Commission to ensure that ‘appropriate guidance material [be] made available for employers on the use of fixed-term contracts beyond normal retirement age’.
These guidelines are being issued by the Commission in response to the recommendation made by the Working Group, and at the request of the Minister for Justice and Equality. The Commission has reserved its position with respect to the issuing of a code of practice in relation to the wider issues arising in the area of retirement and age discrimination.
These guidelines should be read in conjunction with any relevant statutory code of practice as may be enforced from time to time, including the Workplace Relations Commission’s Code of Practice on Longer Working.
Workplace Relations Commission publishes 2017 Annual Report
The main functions of the Workplace Relations Commission (WRC) are to:
Information and Customer Care:
Information on rights and entitlements under employment legislation is provided by the WRC Information and Customer Service Unit. At just under 20,000 calls, by far the highest call type related to employment permits queries. Such calls, given the urgency and personal impact of the issue, are by their nature complex and time-consuming. Other topics that generated a high number of calls related working hours (14%), terms of employment (9%), payment of wages and redundancies (7% each). In addition, the Service dealt with almost 6,000 calls in relation to making a complaint to the WRC.
Advisory Service:
Collective Bargaining
The Advisory Service promotes good practice in the workplace by assisting and advising organisations on all aspects of industrial relations in the workplace.
The Advisory Service works with management and trades unions to resolve disputes in situations where negotiating arrangements are not in place and where collective bargaining fails to take place. During 2017 a total of 9 interventions took place of which three were referred to the Labour Court for resolution.
Training
The Advisory Service oversees the delivery of training by the WRC on all aspects of the employment relationship. This internal capacity resource will be substantially enhanced over the course of 2018. Significant training modules delivered during 2017 include, Dignity at work, dealing with issues in the Workplace and Conciliation/Mediation/Adjudication.
Codes of Practice
The WRC develops Codes of Practice setting out guidance and best practice regarding good industrial relations. In this regard, a Code of Practice on Longer Working was finalised by the Advisory Service in 2017 and published in January 2018.
Conciliation, Facilitation and Mediation Services:
Conciliation
The Conciliation Service of the Commission played a key role in the resolution of challenging industrial relations conflict in 2017. Over the year, 942 disputes covering the private, semi-state and public sector were referred to the Service. Some 1240 conciliation conferences were convened and an overall settlement rate of 84% was achieved.
In terms of matters in dispute in cases referred to the WRC:
The total number of employees affected by these referrals amounted to just over 1.3m persons, albeit some of these employees may
Mediation
The Service continued to promote delivery of its mediation functions and grow and increase complaint mediation delivery. This was delivered by both telephone and face-to-face interactions. In 2017, 197 face-to-face mediations were delivered and 376 telephone mediations. The face-to-face mediation total represented a 185% increase over 2016. These mediation formats achieved a combined settlement rate of 46% across the year. This had the effect of triaging some 220 complaints away from the Adjudication Service. It is the intention of the WRC to build on this further in 2018.
The delivery of ‘workplace’ mediation services also saw an increase in requests for assistance of 50% over 2016 with 70 cases processed and provided. This mediation service is distinct from the complaint mediation service model. It is provided on ad-hoc basis and focuses primarily on assisting parties where issues involving interpersonal differences, difficulties in working together, breakdown in working relationship as well as issues arising from grievance and disciplinary procedure have developed.
Facilitation
The Division saw an increase in the number of requests for assistance by means of facilitated discussion. In this regard, Conciliation Officers chaired 756 such meetings in 2017 – an increase of 445 over 2016.
Adjudication Service:
The Adjudication Service investigates disputes, grievances and claims that individuals or small groups of workers make under employment and equality legislation. Hearings before an Adjudication Officer are held in private.
Over the course of 2017, a total 7,317 complaint applications were received. These applications comprised 14,001 specific complaints, i.e., an average of nearly two separate employment legislation issues within each application. This represented a six per cent increase on 2016 overall.
Of the specific complaints received:
Complainant/Respondent Representation
Over the course of 2017, 53% of complainants were represented at hearings. Of those;
Over the same period, 42% of respondents were represented. Of those;
Hearings Held
A total of 4,370 adjudication hearings were held in 2017. This represented an increase of 24 per cent on the 3,518 held in 2016. The chart below shows the monthly figures for the number of hearings that are scheduled and the numbers of these that are cancelled and those which proceed.
Hearing Waiting Times
The average elapsed time between receipt of the associated complaint application and the hearing date is 97 days while, of complaints received since 1 January 2017, three-quarters were scheduled for hearing within six months. The reasons behind longer scheduling times arise almost entirely from unavailability of the parties or the postponement of hearings at the request of one or both parties. Some instances arise where a complaint form is returned to the complainant as in
Decisions Issued
A total of 2,247 decisions issued in 2017, which is an increase of 82% on the 1,232 decisions issued in 2016, and, where no requests for postponement had been received or none granted and submissions received in a timely manner, over 90 per cent of these decisions issued within six months of the receipt of the original complaint.
Labour Court Decisions
Inspection and Enforcement:
Inspection and Enforcement Services monitor employment conditions to ensure compliance with and, where necessary, the enforcement of employment rights legislation. This includes redress for the employees concerned and payment of any unpaid wages arising from breaches of employment rights.
Over the course of 2017, the Service increasingly targeted its inspection campaigns at sectors and employers considered to be high risk in terms of statutory employment rights transgressions. The Division carried out a total of 4,747 inspections, of which 2,741 (58%) were unannounced. These inspections related to some 99,259 employees (an increase of 24,000 on 2016 and an average of almost 21 employees per employer inspection). Of the 4,747 employers inspected, some 2,032 (43%) were found to be in breach of employment legislation to some degree. By far the most common breach was the failure to keep adequate employment records (62%) followed by employment permits irregularities at 404 (17%).
The sectors showing a high degree of non-compliance were Contract Cleaning (78%), Agriculture (75%), Hair and Beauty (61%), Wholesale and Retail (61%), Food and Drink (58%) and Equine (56%).
A total of €1.77m in unpaid wages was recovered for employees during 2017 - an increase of €270,000 (18%) on 2016.
ESB Employee who slipped and fell on stairs while collecting post awarded €110,000
An ESB employee who slipped and fell on stairs as he was collecting post has been awarded €110,000 by the High Court.
The court found Terence Morgan, who had worked with the ESB for about 38 years, did not get specific training in the task of collecting post which he had performed over a number of years.
Mr Morgan (60) of Drumnacarra, Ravensdale, Dundalk, Co Louth, fell on the stairs at the ESB offices, Avenue Road, Dundalk where he collected post to bring down to a franking machine.
He told the court he was stepping from a landing to the first step on the lower flight of stairs when his feet went from him and he slipped and fell down some more steps.
Mr Morgan hurt his shoulder in the fall, was out of work for over four months and is left with ongoing pain, Ms Justice Bronagh O'Hanlon said.
It was the court's view that a problem with the nosing on the steps, combined with the fact they were wet, caused Mr Morgan to slip and fall very heavily.
While Mr Morgan had inadvertently carried parcels in both hands, the judge ruled it still did not amount to contributory negligence on his part in view of the absence of specific training.
"This accident was reasonably foreseeable and the ESB had given no specific training on collection and delivery of post," the judge said.
It was accepted by both sides the ESB is a fastidious in terms of its emphasis on safety, protocol and investigation, the judge noted.
Mr Morgan said after the fall, he was sore and and winded and went back up the stairs picking up the parcels he had dropped.
He said he noticed water on the landing and the first step. He got a cloth and dried the landing and went home early from work but had to go to hospital the next day.
Ms Justice O'Hanlon said Mr Morgan came across as a very credible witness who did not appear in court to overstate his complaints.
His account of the accident and how it occurred was consistent with his account to medical doctors treating him and he did not exaggerate his injury in any sense.
Firms may have to publish details of any Gender Pay Gap
Firms employing more than 250 workers could have to publish details of any gender pay gap – and face sanctions if they fail to do so – by the end of this year if the Government meets its target for implementing planned new legislation.
It is understood that Minister of State for Equality, Immigration and Integration David Stanton will bring the Heads of the Gender Pay Gap Information Bill to Cabinet by the end of this month.
The legislation will also allow for Workplace Relations Commission inspections, fines and enforcement of compliance through Circuit Court orders.
Failure to comply with any such court order could result in a finding of contempt of court.
While it is unclear how much this additional administrative requirement will add to the cost base of individual firms, the legislation will oblige the Minister to have regard to the cost of compliance that may arise for employers.
If passed, the legislation will initially require employers with more than 250 employees to publish details of any gender pay gap.
However, that threshold would fall to 150 workers two years later, and to 50 after a further 12 months.
At least once a year, employers will have to reveal gender differences for full-time, part-time and temporary workers regarding not just basic hourly pay, but also bonuses and benefit in kind perks.
They will also have to provide a breakdown of male and female employees in lower middle and upper pay bands, as well as by job classification.
This will apply not just to private sector companies, but also to sectors of the public service.
The legislation will be reviewed after five years.
Worker Loses Unfair Dismissal case as alleged to have taken 303 days Sick Leave in Five Years
A Former Local authority worker who took a case of unfair dismissal against his previous employers has lost his appeal at the Workplace Relations Commission (WRC).
The man who worked in the Waste Management Services Division of the authority – said he was dismissed for poor attendance but submitted that his absences were genuine.
His former employer, meanwhile, alleged that the worker had missed 202 days of work by taking sick leave between 2011 and 2016 (with none in 2013), and that it had no alternative but to dismiss him from his job.
The worker submitted that he was dismissed from his role after just under 10 years in the job at the beginning of 2017.
He told the WRC that, after he was sacked, he was unsuccessful in securing another job.
On a number of occasions in 2008, 2009 and 2010, he received warnings over late arrival to work and not turning up.
In April 2011, he had an interview with the HR department where he told them that “all the leave had been certified by his GP and was a result of stress and during this time [his] mother was in the terminal phase of her illness”.
After receiving a final written warning in September 2011, he said his attendance improved significantly between April 2012 and March 2014, missing only 19 days during this period.
Furthermore, he submitted that the company’s record of his sick days are incorrect.
He did receive another written warning on 24th January 2013 in relation to absences on the 25th and 28th December 2012.
A series of written warnings continued to be issued in the subsequent years, with him eventually being informed on 12th October 2016 that his employment would be terminated.
He appealed the decision but was notified on 29th November 2016 that the decision had been upheld.
The WRC said: “The complainant’s legal representative submitted that the complainant’s dismissal, in all the circumstances, is unreasonable, disproportionate and procedurally flawed.
It was accepted that the complainant had difficulties with absenteeism in the first number of years, of his employment, but it was urged within the hearing of this matter that not enough regard was had for his personal circumstances to include the death of his mother or to the significant improvement in the period April 2012 to March 2014.
Furthermore, it was the man’s case that his dismissal was “procedurally unfair, unreasonable and grossly disproportionate” and he sought reinstatement to the position he held before he was sacked.
The local authority submitted that the worker had a “particularly poor attendance record over a number of years” and that “no medical evidence ever indicated that there was an underlying condition”.
Due to these issues, it said it reached the point where it could not have confidence in the worker to remain in employment.
According to the employer, the “correct number of days of sick leave… are 90 days in 2011, 15 days in 2012, 52 in 2014, 18 in 2015 and 27 in 2016″.
It said that it referred the worker to occupational health providers for assessment and, after attending on five occasions, no underlying condition was ever found and he was declared fit for work each time.
He was also referred to support services within the workplace in relation to the death of his mother and other personal issues, the employer said.
The WRC said: “Ultimately, the respondent company submitted it had no option but to dismiss the complainant.
Further, it was not minded, in the circumstances as outlined above, to either reinstate or re-engage the complainant.”
The WRC Adjudication Officer said they were satisfied that the local authority had conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.
They said that they had sympathy for the worker’s situation and of the difficulties he had encountered in the course of his employment but judged that his case did not succeed.
The Adjudication Officer said: “There were substantial grounds justifying the dismissal and that said dismissal resulted wholly or mainly from inter alia the conduct of the employee.”
For the reasons outlined above, the Adjudication Officer determined that the complaint of unfair dismissal (CA-00009679-001) did not succeed.
All Employees have the same rights when it comes to fair procedures and natural justice in relation to their termination of employment - including those on probation.
Probationary periods provide an opportunity for an Employer to assess, evaluate and train employees. The period also affords some protection for Employers as Employees who have less than 12 months’ continued employment do not have sufficient service in general, to take a case under the Unfair Dismissals Acts.
However, what is often overlooked by Employers is that Employees with less than a year’s employment can take a case under the Industrial Relations Act 1969, as there is no service qualification under this act.
This can lead to misunderstanding on the part of employers where they may believe they can terminate an employee’s contract of employment without following due process and not risk reprisal.
The Workplace Relations Commission (WRC) recently found in favour of a complainant under the Industrial Relation Act because she was not afforded fair procedure and natural justice.
While the Employee’s actions and behaviour contributed significantly to her dismissal, she was not afforded an opportunity to respond to her Employer’s complaints.
Complaints
The complainant was employed as a general assistant in a restaurant in January of last year. Her employment was terminated the following April.
At the end of March, she was asked to attend a meeting with her manager to discuss her poor performance and was given a letter outlining the concerns, which included her attitude towards supervisors, interaction with customers and drinking water in the food service areas as well as using her mobile phone without permission.
At this meeting, she was also advised her trial period was being extended until the end of April.
The complainant had received a copy of the employee handbook with her contract of employment when she started work, which outlined the company’s policy on phone use.
Upon commencement of employment, the complainant also attended training courses, at which basic hygiene rules about employees eating and drinking at the food service areas were outlined.
Following the meeting in March, the complainant was again observed drinking in the food service area and on her mobile phone in early April. It was also noted that she was finishing work before her shift was officially over.
Her supervisor made further complaints about her behaviour and another meeting was convened with the complainant in mid-April. It was at this meeting she was notified that she was no longer employed and was given her P45.
Compensation
However, while her behaviour contravened policies set out in the terms and conditions of her employment, the WRC noted that he had not received oral or written warnings prior to her dismissal. And, as noted by the WRC, she was not afforded an opportunity to respond to the complaints made against her.
On that basis, the WRC found in favour of the complainant in that, while her probation period was extended, she was not afforded fair procedures and natural justice. She was awarded €200.
This case highlights the need for an understanding on the part of employers that employees are still entitled to protections even during their probationary period.
Although the award in this case was small, there is time and costs involved on behalf of employers to defend such claims.
Employers must follow correct procedures when dealing with disciplinary issues and document the process correctly, or risk facing an unfair dismissal hearing and compensation payout.
Irish Human Rights and Equality Commission have issued Guidelines on Retirement and Fixed Term Contracts
The Irish Human Rights and Equality Commission (the ‘Commission’) is an independent body that accounts to the Oireachtas. It was established under the Irish Human Rights and Equality Commission Act 2014 (the ‘2014 Act’).
The Commission is Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures, and is Ireland’s national human rights institution.
In 2016, the report of the Interdepartmental Working Group on Fuller Lives was published. In its report, the Working Group recommended that the Department of Justice and Equality ask the Commission to ensure that ‘appropriate guidance material [be] made available for employers on the use of fixed-term contracts beyond normal retirement age’.
These guidelines are being issued by the Commission in response to the recommendation made by the Working Group, and at the request of the Minister for Justice and Equality. The Commission has reserved its position with respect to the issuing of a code of practice in relation to the wider issues arising in the area of retirement and age discrimination.
These guidelines should be read in conjunction with any relevant statutory code of practice as may be enforced from time to time, including the Workplace Relations Commission’s Code of Practice on Longer Working.
Workplace Relations Commission publishes 2017 Annual Report
The main functions of the Workplace Relations Commission (WRC) are to:
- Promote the improvement of workplace relations, and the maintenance of good workplace relations,
- Promote and encourage compliance with relevant employment and equality legislation,
- Provide guidance in relation to compliance with Codes of Practice,
- Conduct reviews of, and monitor developments, in workplace relations generally,
- Conduct or commission relevant research and provide advice, information and the findings of research to Joint Labour Committees and Joint Industrial Councils,
- advise the Minister for Business, Enterprise and Innovation in relation to the application of, and compliance with, relevant legislation, and to
- Provide information to the public in relation to employment legislation
Information and Customer Care:
Information on rights and entitlements under employment legislation is provided by the WRC Information and Customer Service Unit. At just under 20,000 calls, by far the highest call type related to employment permits queries. Such calls, given the urgency and personal impact of the issue, are by their nature complex and time-consuming. Other topics that generated a high number of calls related working hours (14%), terms of employment (9%), payment of wages and redundancies (7% each). In addition, the Service dealt with almost 6,000 calls in relation to making a complaint to the WRC.
Advisory Service:
Collective Bargaining
The Advisory Service promotes good practice in the workplace by assisting and advising organisations on all aspects of industrial relations in the workplace.
The Advisory Service works with management and trades unions to resolve disputes in situations where negotiating arrangements are not in place and where collective bargaining fails to take place. During 2017 a total of 9 interventions took place of which three were referred to the Labour Court for resolution.
Training
The Advisory Service oversees the delivery of training by the WRC on all aspects of the employment relationship. This internal capacity resource will be substantially enhanced over the course of 2018. Significant training modules delivered during 2017 include, Dignity at work, dealing with issues in the Workplace and Conciliation/Mediation/Adjudication.
Codes of Practice
The WRC develops Codes of Practice setting out guidance and best practice regarding good industrial relations. In this regard, a Code of Practice on Longer Working was finalised by the Advisory Service in 2017 and published in January 2018.
Conciliation, Facilitation and Mediation Services:
Conciliation
The Conciliation Service of the Commission played a key role in the resolution of challenging industrial relations conflict in 2017. Over the year, 942 disputes covering the private, semi-state and public sector were referred to the Service. Some 1240 conciliation conferences were convened and an overall settlement rate of 84% was achieved.
In terms of matters in dispute in cases referred to the WRC:
- 40% related to pay,
- 27% concerned broader human resources/industrial relations issues - grading, overtime, hours of work, shift allocation, manning levels and staffing,
- 23% related to organisational structure,
- 4% concerned pension related issues,
- 4% involved redundancy matters, and
- 2% related to holidays or other forms of leave.
The total number of employees affected by these referrals amounted to just over 1.3m persons, albeit some of these employees may
Mediation
The Service continued to promote delivery of its mediation functions and grow and increase complaint mediation delivery. This was delivered by both telephone and face-to-face interactions. In 2017, 197 face-to-face mediations were delivered and 376 telephone mediations. The face-to-face mediation total represented a 185% increase over 2016. These mediation formats achieved a combined settlement rate of 46% across the year. This had the effect of triaging some 220 complaints away from the Adjudication Service. It is the intention of the WRC to build on this further in 2018.
The delivery of ‘workplace’ mediation services also saw an increase in requests for assistance of 50% over 2016 with 70 cases processed and provided. This mediation service is distinct from the complaint mediation service model. It is provided on ad-hoc basis and focuses primarily on assisting parties where issues involving interpersonal differences, difficulties in working together, breakdown in working relationship as well as issues arising from grievance and disciplinary procedure have developed.
Facilitation
The Division saw an increase in the number of requests for assistance by means of facilitated discussion. In this regard, Conciliation Officers chaired 756 such meetings in 2017 – an increase of 445 over 2016.
Adjudication Service:
The Adjudication Service investigates disputes, grievances and claims that individuals or small groups of workers make under employment and equality legislation. Hearings before an Adjudication Officer are held in private.
Over the course of 2017, a total 7,317 complaint applications were received. These applications comprised 14,001 specific complaints, i.e., an average of nearly two separate employment legislation issues within each application. This represented a six per cent increase on 2016 overall.
Of the specific complaints received:
- 27% related to Pay issues,
- 14% related to Unfair Dismissal,
- 13% related to Working Time,
- 11% related to Discrimination/Equality,
- 11% related to Trade Disputes/IR issues, and
- 8% related to Terms and Conditions of Employment.
Complainant/Respondent Representation
Over the course of 2017, 53% of complainants were represented at hearings. Of those;
- 46% were represented by a Solicitor,
- 40% were represented by a Trade Union,
- 6% were represented by the Citizen’s Information Service,
- 4% were represented by a Barrister instructed by solicitor, and
- 4% were represented by a Lay Representative/HR.
Over the same period, 42% of respondents were represented. Of those;
- 46% were represented by a Solicitor,
- 26% were represented by an Employer Representative Association,
- 24% were represented by a HR/Business Service, and
- 8% by a Barrister Instructed by Solicitor.
Hearings Held
A total of 4,370 adjudication hearings were held in 2017. This represented an increase of 24 per cent on the 3,518 held in 2016. The chart below shows the monthly figures for the number of hearings that are scheduled and the numbers of these that are cancelled and those which proceed.
Hearing Waiting Times
The average elapsed time between receipt of the associated complaint application and the hearing date is 97 days while, of complaints received since 1 January 2017, three-quarters were scheduled for hearing within six months. The reasons behind longer scheduling times arise almost entirely from unavailability of the parties or the postponement of hearings at the request of one or both parties. Some instances arise where a complaint form is returned to the complainant as in
Decisions Issued
A total of 2,247 decisions issued in 2017, which is an increase of 82% on the 1,232 decisions issued in 2016, and, where no requests for postponement had been received or none granted and submissions received in a timely manner, over 90 per cent of these decisions issued within six months of the receipt of the original complaint.
Labour Court Decisions
- The Labour Court issued 524 decisions in total during 2017.
- Of these 236 related to Employment and Equality Rights and 115 related to Industrial Relations.
- The Tables below indicate the Court outcome in terms of what was upheld/overturned/varied or outside time-limits.
- The remaining 173 were direct referrals/IRO/Other IR.
Inspection and Enforcement:
Inspection and Enforcement Services monitor employment conditions to ensure compliance with and, where necessary, the enforcement of employment rights legislation. This includes redress for the employees concerned and payment of any unpaid wages arising from breaches of employment rights.
Over the course of 2017, the Service increasingly targeted its inspection campaigns at sectors and employers considered to be high risk in terms of statutory employment rights transgressions. The Division carried out a total of 4,747 inspections, of which 2,741 (58%) were unannounced. These inspections related to some 99,259 employees (an increase of 24,000 on 2016 and an average of almost 21 employees per employer inspection). Of the 4,747 employers inspected, some 2,032 (43%) were found to be in breach of employment legislation to some degree. By far the most common breach was the failure to keep adequate employment records (62%) followed by employment permits irregularities at 404 (17%).
The sectors showing a high degree of non-compliance were Contract Cleaning (78%), Agriculture (75%), Hair and Beauty (61%), Wholesale and Retail (61%), Food and Drink (58%) and Equine (56%).
A total of €1.77m in unpaid wages was recovered for employees during 2017 - an increase of €270,000 (18%) on 2016.
ESB Employee who slipped and fell on stairs while collecting post awarded €110,000
An ESB employee who slipped and fell on stairs as he was collecting post has been awarded €110,000 by the High Court.
The court found Terence Morgan, who had worked with the ESB for about 38 years, did not get specific training in the task of collecting post which he had performed over a number of years.
Mr Morgan (60) of Drumnacarra, Ravensdale, Dundalk, Co Louth, fell on the stairs at the ESB offices, Avenue Road, Dundalk where he collected post to bring down to a franking machine.
He told the court he was stepping from a landing to the first step on the lower flight of stairs when his feet went from him and he slipped and fell down some more steps.
Mr Morgan hurt his shoulder in the fall, was out of work for over four months and is left with ongoing pain, Ms Justice Bronagh O'Hanlon said.
It was the court's view that a problem with the nosing on the steps, combined with the fact they were wet, caused Mr Morgan to slip and fall very heavily.
While Mr Morgan had inadvertently carried parcels in both hands, the judge ruled it still did not amount to contributory negligence on his part in view of the absence of specific training.
"This accident was reasonably foreseeable and the ESB had given no specific training on collection and delivery of post," the judge said.
It was accepted by both sides the ESB is a fastidious in terms of its emphasis on safety, protocol and investigation, the judge noted.
Mr Morgan said after the fall, he was sore and and winded and went back up the stairs picking up the parcels he had dropped.
He said he noticed water on the landing and the first step. He got a cloth and dried the landing and went home early from work but had to go to hospital the next day.
Ms Justice O'Hanlon said Mr Morgan came across as a very credible witness who did not appear in court to overstate his complaints.
His account of the accident and how it occurred was consistent with his account to medical doctors treating him and he did not exaggerate his injury in any sense.
Firms may have to publish details of any Gender Pay Gap
Firms employing more than 250 workers could have to publish details of any gender pay gap – and face sanctions if they fail to do so – by the end of this year if the Government meets its target for implementing planned new legislation.
It is understood that Minister of State for Equality, Immigration and Integration David Stanton will bring the Heads of the Gender Pay Gap Information Bill to Cabinet by the end of this month.
The legislation will also allow for Workplace Relations Commission inspections, fines and enforcement of compliance through Circuit Court orders.
Failure to comply with any such court order could result in a finding of contempt of court.
While it is unclear how much this additional administrative requirement will add to the cost base of individual firms, the legislation will oblige the Minister to have regard to the cost of compliance that may arise for employers.
If passed, the legislation will initially require employers with more than 250 employees to publish details of any gender pay gap.
However, that threshold would fall to 150 workers two years later, and to 50 after a further 12 months.
At least once a year, employers will have to reveal gender differences for full-time, part-time and temporary workers regarding not just basic hourly pay, but also bonuses and benefit in kind perks.
They will also have to provide a breakdown of male and female employees in lower middle and upper pay bands, as well as by job classification.
This will apply not just to private sector companies, but also to sectors of the public service.
The legislation will be reviewed after five years.
Worker Loses Unfair Dismissal case as alleged to have taken 303 days Sick Leave in Five Years
A Former Local authority worker who took a case of unfair dismissal against his previous employers has lost his appeal at the Workplace Relations Commission (WRC).
The man who worked in the Waste Management Services Division of the authority – said he was dismissed for poor attendance but submitted that his absences were genuine.
His former employer, meanwhile, alleged that the worker had missed 202 days of work by taking sick leave between 2011 and 2016 (with none in 2013), and that it had no alternative but to dismiss him from his job.
The worker submitted that he was dismissed from his role after just under 10 years in the job at the beginning of 2017.
He told the WRC that, after he was sacked, he was unsuccessful in securing another job.
On a number of occasions in 2008, 2009 and 2010, he received warnings over late arrival to work and not turning up.
In April 2011, he had an interview with the HR department where he told them that “all the leave had been certified by his GP and was a result of stress and during this time [his] mother was in the terminal phase of her illness”.
After receiving a final written warning in September 2011, he said his attendance improved significantly between April 2012 and March 2014, missing only 19 days during this period.
Furthermore, he submitted that the company’s record of his sick days are incorrect.
He did receive another written warning on 24th January 2013 in relation to absences on the 25th and 28th December 2012.
A series of written warnings continued to be issued in the subsequent years, with him eventually being informed on 12th October 2016 that his employment would be terminated.
He appealed the decision but was notified on 29th November 2016 that the decision had been upheld.
The WRC said: “The complainant’s legal representative submitted that the complainant’s dismissal, in all the circumstances, is unreasonable, disproportionate and procedurally flawed.
It was accepted that the complainant had difficulties with absenteeism in the first number of years, of his employment, but it was urged within the hearing of this matter that not enough regard was had for his personal circumstances to include the death of his mother or to the significant improvement in the period April 2012 to March 2014.
Furthermore, it was the man’s case that his dismissal was “procedurally unfair, unreasonable and grossly disproportionate” and he sought reinstatement to the position he held before he was sacked.
The local authority submitted that the worker had a “particularly poor attendance record over a number of years” and that “no medical evidence ever indicated that there was an underlying condition”.
Due to these issues, it said it reached the point where it could not have confidence in the worker to remain in employment.
According to the employer, the “correct number of days of sick leave… are 90 days in 2011, 15 days in 2012, 52 in 2014, 18 in 2015 and 27 in 2016″.
It said that it referred the worker to occupational health providers for assessment and, after attending on five occasions, no underlying condition was ever found and he was declared fit for work each time.
He was also referred to support services within the workplace in relation to the death of his mother and other personal issues, the employer said.
The WRC said: “Ultimately, the respondent company submitted it had no option but to dismiss the complainant.
Further, it was not minded, in the circumstances as outlined above, to either reinstate or re-engage the complainant.”
The WRC Adjudication Officer said they were satisfied that the local authority had conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.
They said that they had sympathy for the worker’s situation and of the difficulties he had encountered in the course of his employment but judged that his case did not succeed.
The Adjudication Officer said: “There were substantial grounds justifying the dismissal and that said dismissal resulted wholly or mainly from inter alia the conduct of the employee.”
For the reasons outlined above, the Adjudication Officer determined that the complaint of unfair dismissal (CA-00009679-001) did not succeed.
