The ‘One Year’ Calculation Mistake
A recent WRC case highlights the importance of following fair procedures and understanding the requirements of employment law in relation to dismissals. The complainant, Mr Ryan McAuley, raised an Unfair Dismissal claim against Miniso Ireland Limited after he was dismissed on the 359th day of his employment.
Background
Mr McAuley began his employment with Miniso Ireland on 30th April 2022 as a Shop Assistant. He was then promoted to Supervisor in September 2022. However, on 24th April 2023, he was abruptly dismissed. On that day, he had started his work shift at 10:00, as rostered. However, shortly after 12:00, he was called to the office of his manager, Ms Chloe Yi. He was handed a dismissal letter, stating unsatisfactory performance and that his employment was therefore terminated with immediate effect. Mr McAuley questioned the reason for his dismissal and was taken aback by the explanation given by Ms Yi.
Mr McAuley had never received any warnings, either informal or formal, or been the subject of any disciplinary procedure. Following the dismissal, he sought clarification about the termination. He received support from Citizens Information, but the matter was not resolved, so his claim proceeded to a Workplace Relations Commission (WRC) hearing.
Employment Law
An employee is usually required to have one year of service to raise an Unfair Dismissal claim (there are certain exceptions, such as for whistleblowers, but these weren’t relevant in this case). Whilst 359 days would initially appear to be less than the ‘one year’ required, The Minimum Notice and Terms of Employment Act clarifies that if an employee accepts payment in lieu of notice (PILON), the termination date will be ‘the date on which notice, if given, would have expired.’ For Mr McAuley, this meant his service was calculated to end on the 366th day of his employment, making him eligible to claim Unfair Dismissal.
Conclusion
Mr McAuley attended the hearing, supported by a representative from the North Dublin Citizens Information Service. The respondent did not attend the hearing.
The WRC Adjudication Officer concluded the complaint was well founded; Mr McAuley had been unfairly dismissed. The respondent was ordered to pay him €9,750 in compensation.
Takeaways for Employers
This case serves as a reminder of the importance of adhering to fair procedures and understanding the nuances of employment legislation.
Bright Contracts clients have access to a wide variety of employment resources to help ensure their practices are fair, legally compliant, and conducive to a positive work environment. Please visit our website or contact a member of our team to find out more about the support we can offer you.
Texting Trouble: The Importance of Notice Periods
Upholding employee rights and adhering to statutory requirements during notice periods is crucial. Even if an employer feels aggrieved by an employee’s resignation, it is vital to be aware that employment rights remain intact throughout the notice period. A recent WRC case highlights the financial and reputational risks of non-compliance during this critical time.
Ms Yewande Mosobalaje took a stand for her notice period rights by filing a WRC claim against her former employer, Sandonato Ltd t/a Lennox Fish and Chips. After starting her job in September 2023, Ms Mosobalaje gave two weeks’ verbal notice on 12th May 2024, which was accepted by Mr C on behalf of the employer. However, at 11.40pm the next day, he sent a text message stating there was no need to work her notice. Left without pay after 16th May, Ms Mosobalaje decided to take action by raising a WRC claim for notice pay. The respondent did not attend the hearing or provide an explanation for their absence.
As the complainant had eight months’ service, the WRC Adjudication Officer determined that the statutory notice, as per the Minimum Notice and Terms of Employment Act 1973, was one week. Concluding the respondent had wrongfully withheld the wages for this notice period, the officer ordered Sandonato Ltd to pay €450 to Ms Mosobalaje.
Takeaways for Employers
While it is possible for an employer to fairly dismiss an employee without notice, strict requirements must be met. For instance, a contractual right to dismiss without notice may apply in cases of gross misconduct. Additionally, there are alternatives to working the notice period, such as PILON (pay in lieu of notice).
Bright Contracts clients benefit from comprehensive templates for employee contracts, with various options in the Notice clause, including dismissal without notice, PILON, and alternative duties. These provisions offer flexibility and clarity for employers. Please contact us to learn more about the helpful resources and support we can offer you.
Start 2025 Right: The Importance of Employment Terms
The new year offers an ideal time for employers to review employee documentation and ensure compliance with legal requirements. A number of recent WRC cases provide an important reminder that the legal requirement to issue written employment terms to employees includes trainee and intern employees. By adhering to the requirement to provide employment terms in writing, employers foster a professional work environment and reduce the risk of potential legal disputes.
Daina Cathcart worked as a Trainee Picture Framer for Glenart Framing & Art Gallery Limited for several months, but was not provided with a written statement of employment terms. After the end of her employment, Ms Cathcart submitted a complaint to the WRC. In response, the Director agreed that a written statement had not been issued. Consequently, the WRC Adjudication Officer found the complaint well founded and ordered the respondent to pay the complainant compensation of €991, approximately two weeks’ remuneration.
Kelvin Tobun worked as an intern at Dx Compliance Ltd, but raised a WRC claim stating that he had not been given any written terms and conditions, despite asking for an employment contract, and had not been paid his wages in August or September 2023. The WRC Adjudication Officer found both complaints well founded and therefore ordered the respondent to pay Mr Tobun €609.12 for not having provided the required employment terms and €2,370 for the unpaid wages.
Takeaways for Employers
To conclude, it is crucial that employers are aware that the requirement to provide written employment terms applies to all employees, including employees working as trainees and interns. These cases are just two recent instances highlighting the financial and reputational risks of not complying with this requirement, there are many other examples with similar outcomes.
Bright Contracts offers template employment contracts and other resources to help employers meet their obligations. Visit our website or talk to a member of our team to find out more about the help we can offer you.
Employment Law – 2024 in Review
With 2024 coming to a close, it’s useful to reflect on the year’s key changes in employment law. New rules and new rights have brought important updates for both employers and employees to be aware of. This post will revisit the highlights, providing a quick refresher on essential points to help you stay compliant and informed.
Sick Pay
The Sick Leave Act 2022 introduced an employee sick pay scheme with 3 days of statutory sick pay. This came into effect on 1st January 2023.
From 1st January 2024, the entitlement increased to 5 days of statutory sick pay. The Government is currently considering ESRI’s research on statutory sick pay and will later decide if there are to be any increases for 2025 and 2026.
The template Sickness Absence policy in Bright Contracts can easily be tailored to provide information on either statutory sick pay or company sick pay.
Rights to Request Flexible Working and Remote Working
Since 7th March 2024, employees who are parents or carers have been granted the right to request flexible working arrangements. Additionally, all employees have been granted the right to request a remote working arrangement, from the same date.
There is helpful guidance on how to make and respond to these requests in the Workplace Relations Commission’s Code of Practice for Employers and Employees on the Right to Request Flexible Working and Right to Request Remote Working. When preparing the Code, the WRC considered feedback from trade unions, employer representative bodies, and the Irish Human Rights and Equality Commission,
New policies on these statutory rights were added to the Bright Contracts Handbook, to support employers with their new responsibilities.
Parent’s Leave
Parent’s Leave increased from 7 weeks to 9 weeks, for children born or adopted after 1st August 2024. Parent’s Benefit also increased to 9 weeks. (An employee could also claim the additional 2 weeks if their child was under the age of 2 on 1st August 2024, or if their adopted child had been placed less than 2 years before 1st August 2024.)
Full details of the entitlement are provided in the Parent’s Leave and Benefit Act 2019, amended by the Family Leave and Miscellaneous Provisions Act 2021. The Bright Contracts Handbook includes a comprehensive template Parent’s Leave policy.
Takeaways for Employers
It has been a significant year for HR and employment law. To support employers as they navigate these changes, Bright Contracts provides a wide variety of resources which can be tailored to specific needs, including template policies and supporting documents.
Visit our website or talk to a member of our team to find out more about the help we can offer you.
A Win for Workplace Safety: Employer’s Victory in Phone Use Dismissal
DMC Foods Limited, a consumer foods business and ready meal manufacturer, successfully defended an Unfair Dismissal claim raised by Daniel Murtagh, a Warehouse Operative who was dismissed after using a mobile phone while operating a forklift. This case highlights the legal backing given to employers who follow clear, reasonable and legally compliant procedures.
Background
An investigation opened after the Production Manager received a complaint that Mr Murtagh was operating a forklift while using a mobile phone. An external party conducted the investigation, which included CCTV evidence and Mr Murtagh admitting to using the phone. Following the investigation, Mr Murtagh was invited to a Disciplinary Hearing, in which he was not apologetic but attempted to justify his actions. The Managing Director decided the seriousness of the health and safety breach, and the employee’s current written warning for a separate conduct incident, justified dismissal.
Mr Murtagh brought a claim of Unfair Dismissal, alleging that he was unfairly singled out and dismissed for using the phone, when it was common practice, and he was not driving ‘at speed’. His evidence included two statements from former colleagues, one of whom admitted to using a phone while their forklift was stationary, and the other who explained he had left the company after being informed of an investigation into his mobile phone use. Mr Murtagh conceded the use of a phone while operating a forklift was a dangerous practice.
Health and Safety Authority guidance to employers confirms that mobile phones should never be used while operating a forklift. The employer defended the claim by describing how the dismissal was procedurally fair, in line with the Code of Practice on Grievance and Disciplinary Procedures, and the dismissal outcome was proportionate with the seriousness of the health and safety breach.
WRC Decision
The WRC Adjudication Officer considered the evidence from both parties then determined that the use of the phone was ‘extremely dangerous’ and therefore justified a dismissal for the reason of conduct, and the procedure followed was reasonable. He concluded that the dismissal was fair.
Takeaways for Employers
Employers should feel confident about following fair and reasonable procedures to address safety concerns. Clear, reliable policies help to protect the best interests of employees and employers.
Bright Contracts provides employers with template HR documents which can be easily tailored to your specific needs. Our resources include comprehensive policies, helpful guidance notes, and useful supporting documents. Visit our website or talk to a member of our team to find out more about the support we offer.
Working Time ‘Fowl Ups’ for Chicken Business
Background
The complainant, Suman Bhurtel, brought 6 claims to the WRC about his former employer Chicken Castle Limited Chicken Club – 5 for violations of Working Time regulations and 1 for National Minimum Wage underpayment. The respondent provided a defence for all 6 claims so the WRC Adjudication Officer needed to determine the validity of each claim.
The complainant’s working time claims referred to: working Sundays but not receiving a Sunday premium; working public holidays but not receiving an extra payment; under payment of annual leave; not receiving rest periods he was entitled to; working an average of 70 hours per week; and being paid an hourly rate below the National Minimum Wage.
The respondent defended these claims using the following arguments: the complainant did not work Sundays; the complainant did not work public holidays; the complainant was paid in cash for annual leave; the complainant worked 39 hours per week; and the hourly rate was not below the National Minimum Wage.
WRC Decision
For each of the claims, the WRC Adjudication Officer concluded that the complainant provided credible and clear evidence. The lack of documentary evidence provided by the respondent was criticised and the excuses, such as the Company Secretary not being able to access the shop where records were kept, were not acceptable.
Each claim was judged to be well founded and therefore the respondent was ordered to pay compensation to the claimant.
Takeaways for Employers
This case confirms the importance of employers following the Working Time and National Minimum Wage legislation and keeping the required records.
Bright Contracts clients have access to a legally compliant Employee Handbook policies, including a template Hours of Work and Rest Periods Policy. Please contact us if you would like more information.
Legal Update: Parent’s Leave Increasing in August 2024
Parent’s Leave entitlement is increasing to 9 weeks.
Key Changes
From 1st August 2024, the statutory entitlement for Parent’s Leave will increase to 9 weeks’ leave.
Parent’s Leave will increase from 7 weeks to 9 weeks for children born or adopted after 1st August 2024. Employees will also be entitled to claim the additional 2 weeks of Parent’s Leave if their child is under the age of 2 years old on 1st August 2024, or if their adopted child has been placed with their family less than 2 years on 1st August 2024.
Parent’s Leave is available during the first 2 years of a child’s life, or in the case of adoption, within 2 years of the placement of the child with the family.
Parent’s Benefit will also increase from 7 weeks to 9 weeks, for employees who qualify for this benefit.
The legislation governing Parent’s Leave is the Parent’s Leave and Benefit Act 2019, as amended.
Other Types of Leave Entitlements for Parents
It is important to remember that Parent’s Leave is a separate entitlement to Parental Leave.
Parental Leave entitles parents to unpaid leave from work for the purpose of looking after their children, for up to 26 weeks. This entitlement applies to: employees who are parents and guardians of children under 12 years of age; employees who adopted children between the age of 10 and 12, these employees can take Parental Leave for up to 2 years after the date of the adoption order; and employees who are parents and guardians of children with a disability or long-term illness, it is possible to take Parental Leave until these children are 16 years of age.
Other types of statutory leave available to parents are: Adoptive Leave, Force Majeure Leave, Maternity Leave, Medical Care Leave, and Paternity Leave.
Compliance
Failure to comply with the legal obligations relating to leave entitlements can lead to serious consequences including: lost trust and confidence, breakdowns in employee relations, WRC claims, financial penalties, and reputational damage.
Takeaways for Employers
It is essential to keep up to date with the statutory requirements for employee leave entitlements.
Bright Contracts clients have access to a comprehensive Employee Handbook, including template policies for Adoptive Leave, Force Majeure Leave, Maternity Leave, Medical Care Leave, Parent’s Leave, Parental Leave, and Paternity Leave. Please contact us if you would like more information.
€1,000 Lesson on Fair Dismissal Procedures
In this recent case, the complainant’s former employer was ordered to pay €1,000 compensation due to the dismissal process followed – and the amount could have been much higher...
Background
The complainant, Mr Grzegorz Grygier, started employment with Ideal Fire Limited in January 2022. He passed his 6-month probation on time and no concerns had been raised about his performance before he was invited to a meeting with Mr Ray Dooley, Company Director, in January 2023. During this meeting, Mr Grygier’s employment was terminated. The reason given was performance, due to an issue with a gas suppression system.
During the WRC hearing, Mr Dooley confirmed that no formal investigation had occurred, or a Disciplinary hearing, and he had not raised any issues with the complainant prior to the dismissal meeting.
Training records appeared to show only a limited amount of training, which may not have included gas suppression systems, and there had been no negative consequences to the company due to the incident.
The company representative confirmed the dismissal was due to the gas suppression system, but later it was suggested that the reason was instead due to an absence incident. No process had been followed regarding this absence, and it had not been referenced during the dismissal meeting.
WRC Decision
The WRC Adjudication Officer concluded that no investigation or Disciplinary process had been followed, the complainant was not given the opportunity to state his case, and he was not afforded the right to representation. Therefore, she found the dismissal to be procedurally unfair. The complainant’s case succeeded.
Following the Unfair Dismissal finding, the Adjudication Officer considered the amount of compensation to be ordered. The complainant had found employment a week after his notice period expired, and this new job included a higher rate of pay. The Adjudication Officer decided that the Respondent should pay €1,000 in compensation. If the complainant had not been so successful in quickly obtaining a better paid role, the compensation ordered could have been considerably higher!
Takeaways for Employers
This case confirms the importance of following fair Disciplinary procedures. If a reasonable process had taken place, the sequence of events could have been very different, potentially avoiding a claim happening at all.
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
Case Law: Big Fine for Not Providing Employment Documents!
A Dental Technician was awarded over €13,000 after her claims, of not being provided with written employment terms, Unfair Dismissal, and lack of notice pay, were upheld.
The negative consequences of not providing appropriate employment documents were highlighted in this recent Workplace Relations Commission case (ADJ-00034847).
Background
The complainant, Sarah O’Connor, worked as a Dental Technician for the respondent, Cas Dental.
O’Connor alleged that she had not received a written statement of her terms of employment, or a disciplinary procedure, or an employee handbook.
The complainant also explained that she did not receive a letter inviting her to the dismissal meeting. The dismissal meeting lasted about a minute. She was not given notice pay or the right to appeal.
Defence
Mr Colum Sower, a director of the respondent, explained that he thought he had a period of one year to issue an employment contract and this was his understanding based on advice he had received from the Small Business Association.
Mr Sower gave evidence that he issued the complainant with verbal warnings and a written warning before the dismissal, although there was no final written warning or formal improvement plan.
A notice payment was not made, but the complainant was given a payment for good will.
The respondent accepted the procedure used was not perfect but argued that the complainant had not met the required performance standards and there are serious consequences of not meeting standards in the medical profession.
WRC Decision
The WRC Adjudicator found that the claim of not being issued with written terms of employment was well founded. The respondent was ordered to pay compensation of four weeks’ remuneration to the complainant.
The claim of lack of notice pay was also upheld and the WRC Adjudicator ordered the respondent to pay one week’s remuneration to the complainant.
The WRC Adjudicator concluded that the Unfair Dismissal claim was well founded.
There were breaches of the Code of Practice on Grievance and Disciplinary Procedures, including no opportunity for representation at the dismissal meeting, and serious procedural flaws. The Adjudicator concluded that no reasonable employer would have dismissed the complainant in the circumstances and in this manner. The respondent was ordered to pay €12,000 compensation to the complainant.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. The excuse of receiving incorrect advice was not accepted by the WRC Adjudicator.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
It is also important to understand legal obligations relating to notice pay.
Bright Contracts includes a legally compliant template contract clause about notice.
Finally, failure to follow reasonable procedures can result in serious consequences. In the O’Connor v Cas Dental Case, the respondent suffered reputational damage and was ordered to pay significant amounts of compensation.
Bright Contracts has a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
First WRC Decision under Sick Pay Act
In this case (ADJ-00044889), Ms Karolina Leszczynska (the “Claimant”) had been employed by Musgrave Operating Partners Ireland (the “Respondent”) in its Supervalu store since 2007. During her employment, the Claimant went out on sick leave and a dispute arose.
Facts
The Respondent operated a paid sick leave scheme which entitled its employees to up to 8 weeks of sick leave on full pay once they had more than 6 month's service. Under the company's scheme, the first 3 days of leave were deemed "waiting days" and were unpaid. The Claimant went on sick leave for a period of 4 days, for which she only received 1 days' pay.
She then took a WRC claim on the basis that she was entitled to 3 days paid sick leave under the new statutory sick pay scheme per the Sick Leave Act 2022 (2022 Act).
Defence
The Respondent's case was that the Act permits an employer to use its own sick pay scheme as a substitute for the statutory scheme if it provides more favourable sick leave terms.
The following matters need to be taken into consideration when determining if an employer’s scheme is more favourable:
(a) the period of service of an employee that is required before sick leave is payable;
(b) the number of days that an employee is absent before sick leave is payable;
(c) the period for which sick leave is payable;
(d) the amount of sick leave that is payable;
(e) the reference period of the sick leave scheme.
The Respondent submitted that in all but one of the above aspects (point b), its own sick pay scheme was more favourable than the statutory sick pay scheme.
WRC Decision
The Adjudicator stated that the primary issue was whether the "waiting days" condition in the Respondents scheme made the scheme less favourable "as a whole" than the statutory scheme. The Adjudicator noted that a waiting period is also attached to the payment of Illness Benefit by the Department of Social Protection and that such a measure, aimed at discouraging intermittent absences, is a reasonable one.
The Adjudicator concluded that the disadvantage caused by the waiting period in the Respondent's scheme was outweighed by the advantages of the scheme.
The Respondent's scheme gave its employees full pay as opposed to 70% pay as per the statutory scheme. Further, the Respondent's scheme covered a longer period than the statutory scheme.
This led the Adjudicator to conclude that the Respondent's scheme could be substituted for the statutory scheme.
Conclusion
This decision acts as a helpful clarification for employers in respect of whether a company sick pay scheme may or may not be more favourable than the statutory sick pay scheme. When comparing the two schemes, regard should be had to the criteria set out in the legislation.
Crucially, even if certain elements of the company scheme are less favourable than the statutory sick pay scheme, the overall benefit granted by the company sick pay scheme might still be more favourable.
