Case Law - Dismissal of Agency Workers
The employment relationship between an employment agency, the agency worker and the "end user" or "hirer" is an interesting one.
A Workplace Relations Commission (WRC) case (ADJ-00032076) demonstrates the importance of understanding which party is responsible for the potential unfairness of any dismissal of an agency worker.
Here, the agency worker (the "Complainant") was dismissed by the hirer / end user (the "Respondent") for alleged breaches of company policy.
The Complainant brought an Unfair Dismissal claim to the WRC against the Respondent and submitted that the Respondent, as end user / hirer, and not the employment agency was his employer for the purposes of the Unfair Dismissal Acts.
WRC decision – Unfair Dismissal Claim
The WRC Adjudication Officer ("AO") was satisfied that a written contract was in place between the Complainant and the employment agency, who could be considered to be the Complainant’s employer in "general terms". However, the AO referred to Section 13 of the Unfair Dismissals Act 1993 which states that an agency worker shall be deemed to be an employee of the third person under a contract of employment, i.e. the end user / hirer, not the employment agency.
Consequently, the AO found that the Complainant was employed by (and, in the circumstances, unfairly dismissed by) the Respondent in accordance with the Unfair Dismissals Acts.
In relation to the Complainant's efforts to mitigate his losses, the AO found that the Complainant had not made sufficient efforts in this respect. As a consequence, the AO awarded the Complainant just 4 weeks remuneration (€2,494.44) which he found was just and equitable in all the circumstances.
Notice Pay Claim
The Complainant had also brought a claim for notice pay as he was dismissed for gross misconduct and did not receive his notice.
Interestingly, the AO found that, unlike the Unfair Dismissals Act, under the Minimum Notice & Terms of Employment Act, the Respondent was not the Complainant's employer. As a result the Complainant's claim for notice pay was not well-founded.
Conclusion
This is a somewhat unusual provision which may come as a surprise to many employers. Organisations who regularly use agency workers or even those who enter into once-off arrangements with employment agencies are urged to be aware of their obligations and the associated risks when it comes to terminating an agency worker's contract of employment. Such organisations are also advised to consider incorporating relevant indemnities into their commercial agreements with employment agencies for further protections in this regard.
The AO's approach to the Complainant's failure to mitigate his loss is interesting and should also be noted.
Termination of Employment
An employer must have a reason to dismiss an employee. Under the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee is deemed not to be unfair if it is for reasons of capability, conduct, capacity, redundancy, contravening the law, or some other substantial reason.
Giving Notice
At a minimum, employers must give employees the following statutory periods of notice.
Duration of employment Minimum notice
- 13 weeks to 2 years -1 week
- 2 to 5 years -2 weeks
- 5 to 10 years -4 weeks
- 10 to 15 years-6 weeks
- 15 years or more -8 weeks
If the employee’s contract of employment provides for notice in excess of the statutory period, the contractual notice must be given.
An employer may dismiss an employee without notice for gross misconduct e.g assault, stealing or serious breach of employment policies. Employment contracts or handbooks may contain further examples of gross misconduct.
Termination Procedures
The Workplace Relations Commission has introduced a Code of Practice on Grievance and Disciplinary Procedures which employers should follow when dismissing an employee. Disciplinary action may include:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Demotion
- Some other appropriate disciplinary action short of dismissal
- Dismissal
You can read more about Unfair Dismissal in our previous blog post, Unfair Dismissal Claims & How to Avoid Them
Bright Contracts Software has a “Resignation and Termination” policy in the “Terms and Conditions” section of the handbook. Furthermore, in the Company Policies and Procedures section, there is a Grievance/Dispute Procedures which you can edit to your company needs.
How to Dismiss an Employee
Unfortunately, as an employer or business owner, you need to know how to dismiss an employee. No matter what the reason is there is a process that you should always adhere to.
The most important thing to consider is the reason for the termination and if you have taken any steps to try and assist your employee. If you are dealing with an underperforming employee, you shouldn’t automatically think of dismissing them. You should instead understand why the employee is underperforming and assist them in any way to help them improve.
Investigate the situation
The first thing that needs to be done if you are considering dismissing an employee is to formally investigate the situation. Be sure that the documentation clearly outlines the initial complaint or disciplinary issue with the employee as well as the relevant details of the investigation itself. A full list of participants, including what was said in any of the interviews.
After completing the investigation, you may discover the complaints or performance issues that were raised in the interviews were a misunderstanding, a false allegation or not a fault of the employee in question. In most cases, the situation can be resolved with a conversation.
Provide a warning
If after investigating and you conclude that the employee is at fault, you will need to provide them with an official warning. Where the complaint is minor or does not require further action no other disciplinary action needs to be taken.
For more serious incidents, make sure that the employee understands that you are giving them a warning and what the next steps will be if they fail to improve.
Be Professional
If you have conducted your investigations, issued a warning, and have proof of the breach of contract, then you have no option left but to dismiss your employee. For the protection of the company, it is vital that you have the right reasons and supporting evidence for the dismissal. When it comes to delivering the news, you must do this face to face with the employee.
You should adhere to the following points:
- Be prepared, and calmly explain the reasons for the dismissal
- Reiterate the previous warning that has been given and refer to the documentation
- Ensure that the process is short and does not linger for longer than necessary
For legal reasons, you should document and issue the dismissal in written format.
Honour existing agreements
Just because the employee has left does not mean that you can ignore any post dismissal laws that are in place. You must continue to follow both the company policy and legal protocols, including the payments for all hours worked up until the moment of dismissal. If you are required to give your employee two weeks’ notice you may dismiss them immediately, but you will need to provide them with the equivalent of two weeks’ pay.
Related Articles:
Unfair Dismissal Claims & How to avoid them
Back to Basics - Disciplinary Steps and Sanctions
Unfair Dismissal Claims & How to avoid them
An unfair dismissal can occur when your employer terminates your contract of employment with or without notice or the employee terminates their contract of employment with or without notice due to the conduct of your employer.
A dismissal is automatically considered to be unfair if you are dismissed for any of the following reasons:
- Membership or proposed membership of a trade union or engaging in trade union activities
- Religious or political opinions
- Legal proceedings against an employer where you are a party or a witness
- Race, colour, sexual orientation, age, or member of the Traveller community
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
- Availing of rights under legislation to maternity leave, adoptive leave, parental leave, carer’s leave, parental leave, or force majeure leave
- Unfair selection for redundancy
Steps to avoid Unfair Dismissal
Have clear policies
It is important to ensure that all new and current employees have access to the companies’ policies regarding harassment, dress code and attendance policies. The policies must be easy to read for the employee and available to them at any stage during their employment. These policies are not only to keep employees informed but they are used as important reference points to use as the employer during the disciplinary process. Failing to follow these policies can result in an unfair dismissal claim.
HR & Equality training
Employers need to make sure that the dismissal is thoroughly thought through beforehand and is not an impulsive retaliation to an employee’s actions. By providing training for all staff members involved in the dismissal process you will know that the process is being conducted legally.
Keep track of employee conduct
Terminating an employee can sometimes devolve into a he-said she-sad argument with no clear winner. Without proper documentation, it can be difficult to terminate an employee without fearing an unfair dismissal claim. When you begin to see that an employee might not be suitable for your company, start keeping track of their misconduct. Use a word document or journal to keep track of any problems the employee encounters. For example, take note of any time they showed up late or were not dressed appropriately.
Implement a performance management plan
When you first discuss with the employee about potentially dismissing them, you will need to set up a performance management plan to give your employee a chance to improve. If you still need to terminate this employee, the document plan shows that you tried to help your employee. Employers can do this by setting up parameters and goals for their improvement.
Related Articles:
The WHO? WHAT?WHERE? and WHY? Of The WRC
Back to Basics - Disciplinary Steps and Sanctions
The WHO?WHAT?WHERE? and WHY? Of The WRC
The Workplace Relations Commission, or as they are more commonly referred to, the WRC, are a body which companies discuss in hushed tones as we associate them with discrimination cases but do we all know exactly WHO they are and WHAT they do besides being the deciding body on employment law cases? I don’t think many of us are sure, which is why our blog post will dive into the WHO?WHAT?WHERE? and WHY? Of The WRC.
Established on the 1st of October 2015, The Workplace Relations Commission (WRC) is an independent, statutory body which is Irish government-operated, which decides cases of alleged discrimination under Irish equality legislation. It was established under the Workplace Relations Act 2015 which reforms the State’s employment rights and industrial relations structures to deliver a better service for employers and employees.
Previously there were 5 separate bodies which dealt with complaints and disputes relating to industrial relations, employment law and employment equality but under the new system there are now 2 statutory bodies, namely The Workplace Relations Commission and the Labour Court. The Commission has a board consisting of a chairperson and 8 ordinary members appointed by the Minister for Enterprise, Trade and Employment.
The WRC provides information on employment law, equality and industrial relations to employees, employers and representative bodies of employees and employers. The function of the WRC is to provide advisory and conciliation services. Upon request, the Advisory Service engages with employers, employees and their representatives to help them to develop effective industrial relations practices, procedures and structures. This assistance could include reviewing or developing effective workplace procedures in areas such as grievance, discipline, communications and consultation.
Conciliation is a voluntary process where the parties to a dispute agree to avail of a neutral and impartial third party who will assist them in resolving their industrial relations differences. How the WRC assists in this situation is they will provide an Industrial Relations Officer to chair negotiations with the view of steering the discussions and exploring possible solutions in a non-prejudicial fashion. Solutions are reached only by consensus, hence the outcome is voluntary.
WRC inspectors visit workplaces and carry out inspections of employer’s records to ensure compliance with employment and equality legislation. An inspection may arise as a result of a complaint being received of alleged non-compliance, a campaign focussing on a specific sector or a particular piece of legislation, or it may simply be a routine inspection. Where breaches of legislation have been found, the inspector may, depending on the legislation involved, issue either a compliance notice or a fixed payment notice to the employer.
The WRC also has responsibility for:
• promoting the improvement of workplace relations, and maintenance of good workplace relations,
• promoting and encouraging compliance with relevant enactments,
• providing guidance in relation to compliance with codes of practice approved under Section 20 of the Workplace Relations Act 2015,
• conducting reviews of, and monitor developments as respects, workplace relations,
• conducting or commissioning research into matters pertaining to workplace relations,
• providing advice, information and the findings of research conducted by the Commission to joint labour committees and joint industrial councils,
• advising and apprising the Minister in relation to the application of, and compliance with, relevant enactments, and
• providing information to members of the public in relation to employment
Related Articles:
- Don't Get Caught Out: The 5 Core Terms
- Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
Don't Get Caught Out: Maximum Award For The Employee Against Mandatory Retirement
Ensuring you are fully compliant with Irish employment law is a must when looking at ending an employees employment whether it be by termination or retirement. The following case is an example as to how not taking the right steps can lead to a huge cost for the employer.
The Case: Senior Staff Nurse Vs Nursing Home
The Complainant was employed as a senior staff nurse from the 10th May 2014 until the date of her compulsory retirement on the 28th October 2019, by the Respondent, a nursing home in liquidation. She received remuneration of approximately €5,883 per month gross. The Complainant sought an award of compensation in respect of discrimination suffered, loss of almost a year’s work and loss of redundancy payments before the Respondent closed and went into liquidation.
The Complainant was initially provided with a “Relief Panel Fixed Term Contract” requiring her to work ‘as required and when the need arises, varied hours up to 39 hours of a standard 39 hour week’. This included a retirement clause stating ‘Retirement age is 65 years. Employment beyond retirement age is exceptional and only by agreement of the employer.’ There were no further renewals of this contract, and it therefore effectively became a contract of indefinite duration. The Complainant was granted a one-year extension on her compulsory retirement, setting her new retirement date as the 31st of October 2019.
In July 2019, the Complainant entered discussions with Ms. A, who was the Clinical Nurse Manager and the Complainant’s line manager in regards to continuing her employment following the 31st of October 2019. Here, Ms, A. indicated her support for this and told the Complainant to apply for an extension in writing which she did, she did not receive a response. In absence of a response, the Complainant went straight to the Director of Nursing, Mr. B where he informed her that this would not be possible and that they would only have work for her until the end of October 2019. He also informed her verbally that there was a plan to recruit non-EEA national nurses to fill positions with the Respondent. Non-EEA national work visas can only be applied for by employers when no suitable EEA nationals were available to work in the same occupational category. The Complainant asserts that the Respondent did not offer any rationale or objective justification for their decision to terminate her employment.
On 25th October 2019, the Complainant received her final communication from Mr. B confirming that her last working day would be 28th October 2019. Non-EEA nurses were recruited in November 2019 and took over the Complainant’s duties. The Respondent operated for a further eleven months and was then subject to High Court Winding-Up Proceedings on the ground of insolvency. Some staff were redeployed nearby, others received statutory redundancy and approximately €3,000 ex gratia payment which the Complainant had been denied. She had received an excellent reference from Ms. A, which the Complainant asserts proves that she was dismissed based purely on age. The complaint was referred to the WRC on 28th February 2020 where noo evidence was provided in rebuttal of the complaint that the Respondent had acted unlawfully and in breach of the Employment Equality Acts on the ground of age.
Decision: The Adjudicator found that the only basis for the Complainant’s compulsory retirement was her date of birth, and that at the time she was provided with the Fixed Term Contract in 2018 upon her reaching the age of 65, no objective justification was given either verbally or in writing. The Adjudicator was satisfied that there was sufficient work available that the Complainant was fully capable of undertaking. The Respondent was ordered to pay the Complainant €85,000, being 2 years’ remuneration, in compensation for breaches of the Employment Equality Acts.
The takeaway of this case for employers is they should note that compulsory retirement must have an express valid reasoning and justification behind it, and that it is not exempt from being construed as discrimination on the basis of age.
Related Articles:
- Retirement in the Workplace: Is it enforceable?
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
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
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.
€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.
