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8
Aug 18

Posted by
Jennie Hussey

Back to Basics - Disciplinary Steps and Sanctions

Another question that comes up from time to time is how and when to initiate the disciplinary procedures - How many warnings can an employee receive before being dismissed? When do I give a final warning? Can I fire my employee for committing an offence of gross misconduct?

The first step is always to inform the employee of issues that you may have, even minor issues; whether it is with their job performance, their time keeping, or even a breach of company rules, by means of informal counselling. The employee must be given the appropriate time/measures to defend themselves or at least be given the chance to rectify the problem. Prior to taking the decision to invoke the disciplinary procedure, the employer must ensure that the situation has been thoroughly investigated.

The following disciplinary procedures should apply in matters of discipline; constant repetition of minor offences, willful negligence or unsatisfactory performance or complaints, that are found to be proven against the employees.

The stages in the procedure are as follows:

• Stage 1 - Verbal Warning
• Stage 2 - First Written Warning
• Stage 3 - Final Written Warning                                                                                                                      The final written warning will state clearly that the next stage may be termination of employment if conduct and/or performance does not improve.
• Stage 4: Action Short of Dismissal
In exceptional circumstances, and depending on the individual case, The Company may exercise its discretion to suspend with or without pay. Demotion to a lower position or rate of pay and transfer to another position may also be considered. This is action short of dismissal.
• Stage 5: Dismissal
In an instance of gross misconduct, a full investigation will be conducted and a disciplinary meeting will be held. This will follow the normal procedures outlined above, but the outcome, if found to be gross misconduct, will almost certainly result in dismissal due to the serious nature of the situation.

At each stage in the procedure a disciplinary meeting should be held, where all the facts will be considered and any mitigating circumstances discussed, as well as timelines imposed for improvements, etc. Where a warning is issued, a copy will be placed on the employees personnel file for a defined period. All warnings issued under this procedure will state clearly that the employee will be liable for further disciplinary action should their performance not improve or should there be a further breach of company rules or procedures. In the event of no further transgression occurring and the performance improving, the warning will be removed after a period of no more than 12 months and the employee’s file will be clear. The employee will also be advised of his/her right to appeal against disciplinary action taken.

This is an area where employer’s need to tread carefully, at all times fair procedures must be applied and the company’s’ policy regarding disciplinary steps and sanctions should be adhered to. Once these steps are followed there is no reason why an employer cannot dismiss an employee without repercussions. Most employers tend to fall down and lose Unfair Dismissal cases brought against them, not because they didn’t have disciplinary procedures in place, but because they did and they failed to actually follow them.

Bright Contracts has a very robust Discipline and Grievance Policy set out in its Handbook with all the relevant procedures that an employer needs. To download a free trial of Bright Contracts click here. To request an online demo of Bright Contracts, click here.

 

Bright Contracts | Thesaurus Payroll Software | BrightPay Payroll Software

Posted in Dismissals

24
Jul 18

Posted by
Jennie Hussey

Back to Basics - New Employees

We often get calls into the helpline requesting basic information on HR/Employment Law queries like how to deal with new starters or when should an employer invoke the disciplinary procedures, so we will look at some basic HR topics in a series of blogs starting today with new employees.


New Employees
• A new employee is required by law, under the Unfair Dismissal Act, to receive a copy of the company’s ‘Dismissal Procedures’, which are usually contained in the ‘Disciplinary/Grievance Procedures’ of the Staff or Company Handbook, within 28 days of starting work with the company.
• Under the Terms of Employment (Information) Act 1994 the employer is obliged to furnish new employees within 2 months of starting, with a ‘Written Statement of ‘certain’ terms and conditions’ of their employment, also known as an ‘Employment Contract’.
• The new GDPR regulations specify that employers must provide their employees with information about what personal data they hold on them, for what purpose and how it was collected, who it may be shared with, what security measures are in place to keep it safe and what the employee’s rights are as well as other specific requirements. This is called an ‘Employee Privacy Policy’ or ‘Employee Privacy Notice’ and should be given to the employee as an addendum to their Employment Contract.

Based on these 3 pieces of legislation it would be best practice to provide your new starter with their Employment Contract, Privacy Policy and Staff/Company Handbook on their first day of work, if not before it. An employer can be fined up to 4 weeks pay for not providing the employee with their ‘Written Statement of Terms and Conditions of Employment’ within the 2 month timeframe, so it is best to get into the habit of furnishing the documents as soon as possible.

There is no requirement for a signature from the employee on any of these documents; however it would be prudent of an employer to request a signature from the employee or at least some form of acknowledgement or proof of the employee receiving the documents.

The new Employment Bill 2017, yet to be introduced, stipulates that a new employee should receive some details of their terms of employment within 5 days of starting with a company but it is yet to be seen whether this aspect of the Bill will get the go ahead.

Bright Contracts offers employers a simple and user-friendly system which enables them to easily create and customize all of these documents and keep an electronic record on file. To download a Free Trial click here or book an online Demo of the Bright Contracts software.

 

Bright Contracts | Thesaurus Payroll Software | BrightPay Payroll Software

Posted in Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employee Records, Employment Contract, GDPR, Staff Handbook

17
May 18

Posted by
Jennie Hussey

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.

Posted in Company handbook, Contract of employment, Discrimination, Dismissals, Employment Tribunals, Wages, Workplace Relations Commission, WRC

16
Jan 18

Posted by
Jennie Hussey

€15k awarded in discrimination case to pregnant employee

The Labour Court found that the sacking of a manager from Wrights of Howth’s Crabby Jo’s restaurant was tainted with discrimination and have awarded compensation of €15,000.

Background

The employee was on a 6 month probationary period when she was fired just 3 months into her employment, very shortly after informing her bosses that she was pregnant.

No issues had been raised about the employee’s performance, however poor work performance was used as the reason for her dismissal on the 15th of June. The employee felt that the atmosphere had changed completely after she had announced her pregnancy on the 8th of May, she had requested a meeting to discuss her concerns she had over this. She was given no opportunity to make any representations or defend her position and was simply informed, without warning, that her employment was terminated.

In its ruling, the court found that no issues had previously been raised about the employee’s performance prior to her notifying them that she was pregnant and she had not been subject to any disciplinary warnings or action. The court originally awarded €30,000 for discrimination based on gender, however this decision was appealed and a lesser figure of €15,000 compensation was awarded due to the manner of the dismissal and the serious lacking in adherence to the restaurant’s own disciplinary procedures.

Learning points

It is important to recognise that disciplinary procedures must be followed at all times, regardless of how simple or difficult a situation may seem to be. It can end up being a very expensive mistake for an employer. Bright Contracts has comprehensive Disciplinary and Grievance procedures, customisable to companies requirements, built into the software.

Posted in Company handbook, Contract of employment, Discrimination, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook, Workplace Relations Commission, WRC

11
Nov 17

Posted by
Jennie Hussey

How to avoid harassment in the workplace

The recent allegations against Harvey Weinstein n the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.

The Employment Equality Acts clearly defines sexual harassment as: forms of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

It is important for employers to ensure that harassment will not be tolerated and to portray this to their employees and clients. Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively, organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.

There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:

A Bullying and Harassment policy 

  • to protect the dignity of employees and to encourage respect in the workplace

An Equal Opportunities policy 

  • to create a workplace which provides for Equal Opportunities for all staff

A Whistle-blowing policy 

  • to enable staff to voice concerns in a responsible and effective manner.

Transparent and fair procedures throughout 

Disciplinary action

  • A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.

Provision of on-going training 

  • At all levels within organisation

Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.

To book a free online demo of Bright Contracts click here
To download your free trial of Bright Contracts click here

Posted in Bullying and Harassment, Company handbook, Discrimination, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook, Workplace Relations Commission, WRC

19
Sep 17

Posted by
Lauren Conway

4 Reasons why contracts of employment are needed

We’ve heard all the excuses before; “I’m too busy and don’t have the time”, “It’s too expensive to implement contracts”, or “I only have four employees, I don’t need to provide employment contracts”. If you are an employer you are obliged to provide your employees with a written statement of terms of employment.

We have compiled the 4 most important reasons why contracts of employment are needed.

It is a legal requirement

Under the Terms of Employment (Information) Acts 1994-2014, as an employer you must provide a written contract of employment to a new staff member no later than 2 months after their commencement. Employers must also provide employees with written disciplinary procedures, and procedures that the employer will follow when dismissing an employee, within 28 days of the employee starting. These procedures may be included in the employment contract or in the company handbook.

Protect your business against costly disputes

Having contracts of employment in place offers your business protection in the case of a dispute. A dispute can escalate to the WRC, where not having clearly documented terms of employment can really leave you wide open as an employer. If you are found not to have contracts of employment in place for your staff you will face a fine of 4 weeks’ pay per employee. In the case of a dispute, employers could face fines equating to two years remuneration - the maximum compensation award.

Protect your company against WRC inspections

Approximately 5,000 workplace inspections are carried out by the WRC every year, with 60% of them being unannounced. During a WRC inspection, the first thing they will ask to see is a copy of your contracts of employment. In 2016, 62% of employers failed to keep adequate employment records. Inspectors may issue on the spot fines for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence.

Instills confidence in you and your employees

In terms of the employer/employee relationship, the contract of employment is the most important thing you’ll ever deal with. It is the foundation stone of the employer/employee relationship. Having contracts of employment in place will clarify certain conditions for you and your employee so that both parties are aware of what is expected of them. Having contracts in place will also instill confidence in you, knowing that you are doing everything you can do to protect yourself and your business in any situation that may arise.

It is never too late to put contracts of employment in place. Read our blog “How can I introduce contracts to existing employees?” and follow our 4 simple steps here.

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employee Records, Employment Contract, Employment Tribunals, NERA, Pay/Wage, Sick Leave/Absence Management, SME, Staff Handbook, Wages

11
Sep 17

Posted by
Lauren Conway

Employee awarded maximum unfair dismissal compensation

The Labor Court has recently ruled that a driver was unfairly dismissed after he was involved in three road accidents. The driver was awarded €72,042, equating to two years remuneration - the maximum compensation which could be awarded.

Background

Mr. Coughlan was employed as a van driver for DHL for 11 years. In 2012 he was involved in a road accident to which he received a written warning. In 2013 he was involved in a second road accident where he received a final warning. The warnings were ‘live’ for 12 months, after which they expired. The claimant was involved in a third road accident in 2015 to which damages to the van amounted to €2,500. By that time both previous warnings had expired and he was brought into a disciplinary hearing for “failure to protect and safeguard company property”.

During the hearing Mr. Coughlan took responsibility for his misjudgment which led to the accident. Throughout the hearing numerous references were made to the expired incidents. Mr. Coughlan was dismissed with immediate effect for gross misconduct on the basis that he had failed to protect and safeguard company property.

Finding

The WRC found the dismissal unreasonable and ordered reinstatement. At the appeal to the Labor Court, DHL argued that they had no other choice but to dismiss Mr. Coughlan as their faith in his driving abilities was lost. Although his previous warnings had expired, the company felt that they had to take his entire working history into consideration. The Court determined that the 2015 incident, in isolation to the previous warnings was not sufficient to dismiss. It also took into consideration the company’s failure to consider alternative positions within the organisation for Mr. Coughlan.

Learning Points

This case highlights something we see time again, the importance of practicing fair procedures when considering dismissal. It highlights the importance of employers showing that they had considered alternative roles where possible before dismissal – something that is often noted in unfair dismissal cases. Lastly, the enormous amount awarded to Mr. Coughlan reminds employers of the costly consequence unfair dismissal can have on their business.

Posted in Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, Health & Safety, Pay/Wage, Staff Handbook

5
Sep 17

Posted by
Laura Murphy

The dangers of dismissing an employee during probation

Recruitment is tricky, and with any new hire there is an element of risk involved; will they work out, is their experience what they say it is, will they fit-in with the team? In the unfortunate instances where things do not work out, it can be problematic for an employer, particularly a small employer. 

A Common Misconception

A common misconception is that if an employee is on probation and things are not working out, that they can be dismissed without regard. This is not the case and can leave employers wide open to a claim against them. There are a number of employment cases that illustrate this and serve as good case studies for employers. In the case of Glenpatrick Water Coolers Limited v. a worker, the Labour Court recommended that the employer pay €6,500 to an employee who was unfairly dismissed whilst on probation. Whilst the Court recognised the inclusion in the contract that normal disciplinary procedures did not apply during the probationary period, the court insisted that fair procedures must still apply. More significantly, an engineer was awarded €33,400 having been dismissed 2 months into his probation period. In both of the above cases, the courts highlighted the employer's’ total failure to adhere to the Code of Practice on Grievance and Disciplinary procedures.

Be Aware

Whilst an employee is not protected by the Unfair Dismissals Act until they have accrued one year's’ service, claims for unfair dismissal can be brought under the Industrial Relations Act. Employers should be aware that although dismissal during probation is possible, it does not give employers a free-hand to act as they please. Fair procedures and natural justice should always be respected.

To view our full Essential Guide to Managing Probation click here

To view our Sample Probation Letters click here

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, SME, Staff Handbook

24
Aug 17

Posted by
Lauren Conway

Employee reasonably dismissed after leaving a charity van outside a pub overnight

The Workplace Relations Commission (WRC) found that an employee had been fairly dismissed after he left a charity van, displaying the charity’s logo, parked outside a pub overnight. The van was recovered from the car park the following day when the worker telephoned a colleague and asked that they retrieve it. However, the worker was suspended with full pay, pending investigation, when he returned to work on Monday. The following month, as a result of the investigation the employee was dismissed.

Investigation

The worker had been employed at with the charity for less than a year, and therefore did not meet the requirement of having 1 years’ service in order to make a claim for unfair dismissal under the Unfair Dismissals Acts 1977-2015. The case instead was brought under the Industrial Relations Acts 1969, investigating a dispute between an employer and employee, and whether natural justice and fair procedures were followed during the investigation and dismissal.

The employee argued that he was subject to an unfair investigation and was dismissed for taking a charity van home, which he claimed was customary among employees to do in order to facilitate work routes the following day. He added that he had received an urgent phone call from his mother regarding the hospitalisation of his father and that the only way he could assist in taking his mother to the hospital was by using the charity’s van.

The employer argued that as a charity, in a time where voluntary contributions are increasingly under scrutiny that their public image is of the utmost importance. They noted that they had a vehicle policy in place and that the absence of a company van for over 24 hours was unacceptable. The employer also argued that during the disciplinary process “a female manager had become frightened by suggestions that the complainant would call to her home address”.

Finding

The adjudication officer found:

“Taking in mind the open admission of the complainant that he had taken the van home and the extensive nature of the investigation and proper appeal procedures, I came to the view that the dismissal decision was in the band of reasonableness for an employer in the charity/voluntary sector concerned.”

Learning Points

It is important to note that although an employee cannot make a claim for unfair dismissal under the Unfair Dismissals Acts 1977-2015 if they have less than 1 years’ service, employers must ensure that natural justice and fair procedures are followed at all times. We can also see from this case how having clear policies and procedures in place is extremely important, particularly to assist protecting your business against a possible claim.

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, Staff Handbook

16
Aug 17

Posted by
Lauren Conway

€30,000 Awarded to employee dismissed during probation

If an employee has less than one year of service with an employer they are not protected under the Unfair Dismissals Act 1977-2007. In spite of this, all employees are entitled to natural justice and fair procedures, which makes dismissing an employee whilst on probation less straightforward than it may seem. This is evident in this case where a former General Secretary of the Irish Postmaster Union was awarded €30,000 for being unfairly dismissal during his 6 months probationary period.

Background

The employee commenced working for the Irish Postmaster Union in August 2009 and was advised that he was on a probationary period for 6 months. In October 2009 he had his first performance review and in January 2010 he had his second performance review. Towards the end of January, the employee was informed that there were reservations regarding his performance and that this probation period was to be extended for a further 3 months. The employee wrote a letter to his employer expressing his concerns regarding this and was subsequently dismissed and paid 3 months’ salary in lieu of notice.

Findings

The court found that the employer had failed to “adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000 because he was on probation, was misconceived”. The employee was awarded €30,000 for unfair dismissal on top of the 3 months’ salary he was paid in lieu of notice.

Learning Points

Employers must be aware that although the employee is not protected by the Unfair Dismissals Act, that they can still make a claim for unfair dismissal under the Industrial Relations Act, 1969. It is advisable for an employer to include a probationary clause in their employee’s contract of employment, and if they wish to dismiss an employee during the probation period that they should exercise fair procedures.

To book a free online demo of Bright Contracts click here
To download your free Bright Contracts trial click here

Posted in Awards, Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, Staff Handbook

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