Anne O'Connell Solicitors

Anne O'Connell Solicitors

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News and developments

What to look out for in 2024

In our first newsletter of 2024, we at Anne O’Connell Solicitors would like to highlight some key employment...

20 March 2024

Press Releases

Wrc examines first case under sick leave act 2022

Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889 concerned a complaint to the Workplace Relations Commission (“WRC”) under the Sick Leave Act 2022 (“the Act”).

21 March 2024

Press Releases

Wrc awards €8,000 for penalisation of a whistleblower

In Bruno Seigle – Murandi v Roche Products (Ireland) Limited ADJ 00034384 the Complainant lodged a claim with the Workplace Relations Commission (“WRC”) pursuant to Schedule 2 of the Protected Disclosures Act 2014,

21 March 2024

Press Releases

Update - sick leave act 2022

The provisions of the Sick Leave Act (“the Act”) commenced on 1st January 2023 and provides that an employee shall be entitled,

21 March 2024

Press Releases

Update – paid domestic violence leave

On 27th November 2023, paid domestic violence leave came into effect in Ireland. The leave is provided for by the new section 13AA in the Parental Leave Acts 1998 – 2003, inserted by the Work Life Balance and Miscellaneous Provisions Act, 2023.

21 March 2024

Press Releases

Maximum compensation awarded against an post in sexual harassment claim

In Catherine Kelly v An Post ADJ-00040021 the Complainant lodged a complaint with the Workplace Relations Commission (“WRC”) under the Employment Equality Acts (the “Acts”) claiming that she was sexually harassed by a colleague and that the Respondent failed to deal with it appropriately.

21 March 2024

Update - sick leave act 2022

Update - Sick Leave Act 2022. The provisions of the Sick Leave Act (“the Act”) commenced on 1st January...

19 March 2024

Workplace Relations

Unfair dismissal decision reiterates the importance of fair procedures

Facts: The case of Fit4Life Gym v Megan Healy[1] was an appeal to the Labour Court from a Workplace Relations Commission (“WRC”) decision awarding the Complainant compensation of €21,736 for unfair dismissal. At the time of her dismissal, the Complainant was earning €416.00 per week.

19 March 2024

Employment

Wrc reiterates the requirement for redundancy to be impersonal and the importance of following a redundancy consultation process and considering alternatives

Facts: The Complainant, Gerard Buston, commenced employment with the Respondent, Duggan Systems Limited, as a factory operative on 30th May 2018 and subsequently worked as a line leader from 18th November 2019. In 2020 he was placed on temporary lay-off from 30th March to 10th April. Later that month an altercation took place between the Complainant and his manager. There was a conflict of evidence as to which party was the aggressor. The Complainant was not called for work the following week and he subsequently received a letter from the Managing Director terminating his employment by reason of redundancy. There was redundancy consultation process and no alternatives to redundancy were considered or discussed with the Complainant.

16 May 2022

Employment

Work life balance and miscellaneous provisions bill – general scheme gains government approval

The General Scheme of the Work Life Balance and Miscellaneous Provisions Bill 2022 (“the Bill”) that is due to be implemented later this year was approved by Cabinet on 21st April. The General Scheme contains proposed amendments to various pieces of legislation including the Parental Leave Act 1998, the Maternity Protection Act 1994, and the Adoptive Leave Act 1995, required in line with certain articles of the EU Work-Life Balance Directive which is due to be transposed into Irish law by 2nd August this year.

16 May 2022

Employment

Wrc dismisses payment of wages claim – contractual term allowed the respondent to deduct costs associated with failure to provide notice

In Brigid Walsh v PV Generation Limited, the Complainant issued a complaint under the Payment of Wages Act, 1991 seeking reimbursement of outstanding salary that had been deferred due to the Covid-19 pandemic in circumstances where the Respondent had undertaken to reimburse any deferred salary. An express written term of the Complainant’s contract of employment permitted the deduction from her termination pay of an amount equal to the costs of covering her duties during her notice period in the event of her failing to provide the Respondent with notice of resignation.

16 May 2022

Employment

Statutory redundancy payment no longer taken into account when calculating unfair dismissal award

In the recent decision of the WRC in the case of Kieran Murray v Sherry Garden Rooms Limited, ADJ-00028766, the Complainant took a claim for Unfair Dismissal against the Respondent. The Respondent argued that the Complainant had been made redundant. The Complainant was awarded €32,833.70. When calculating the Complainant’s financial loss,  Adjudicator did take into account the PUP payment or the Statutory Redundancy lump sum payment that he had received.

16 May 2022

Press Releases

Wrc applies high bar in rejecting a constructive dismissal claim

WRC Adjudicator emphasises the high bar that must be met by a Complainant in a constructive dismissal claim. He details the case law and applied both tests in his decision, finding that the evidence did not illustrate unreasonableness required on the part of the employer nor did it illustrate a breach of contract.

14 March 2022

Press Releases

Labour court finds redundancy to be an unfair dismissal decision as no meaningful effort to consider alternative options

This was an appeal by the Respondent, Cuan Tamhnaigh Teoranta, to the Labour Court of a Workplace Relations Commission (“WRC���) decision in which the Adjudication Officer found that the Complainant, Mr Declan McShane, had been unfairly dismissed from his employment with the Respondent. The Adjudication Officer awarded the Complainant €12,000 in compensation.

14 March 2022

Press Releases

Courier deemed to be an employee and successful in unfair dismissal claim but misses out on substantial award for failing to mitigate his loss

In the case of John Read v. Speedking Couriers Ltd t/a Fastway, the Complainant had his contract terminated with one week’s notice and without the application of any procedure whatsoever by the Respondent Company.  The Complainant brought a claim for Unfair Dismissal which was not upheld at the WRC but the Complainant was not in attendance due to an administrative error. Subsequently, the Complainant appealed the WRC decision to the Labour Court.

14 March 2022

Press Releases

Wrc limited award for unfair dismissal due to employee’s decision not to properly mitigate loss

In the recent decision of Martin Gillen v. Derek Daly Construction Ltd ADJ-00029984 the Complainant was held to have been unfairly dismissed as the Respondent failed to follow any procedures in respect of his dismissal, which involved a serious instance of gross misconduct by the Complainant. As the Complainant limited the amount he worked, after his dismissal, so he qualified for social welfare, the Adjudicator deemed that any award is limited to the amount as if he had no financial loss i.e. 4 weeks remuneration.

14 March 2022

Press Releases

Wrc finds withholding of ex-gratia payment, as employee refused to sign agreement, amounted to penalisation

In the recent decision of Robert Farrell v Modus Link Kildare Unlimited Company, ADJ-00032100, the WRC determined that the withholding by the Respondent of an ex-gratia payment because of the Complainant’s ongoing personal injuries claim against the Respondent constituted penalisation under section 27 of the Safety, Health and Welfare at Work Act 2005 (the ‘Act’).

14 March 2022

Press Releases

Heads of bill published for right to request remote working bill 2021

The Covid-19 Pandemic has seen remote working become a staple of the Irish workplace and with it, the Government has reiterated its commitment to its Remote Working Strategy. On 25th January 2022, the Department of Enterprise, Trade and Employment published the eagerly anticipated draft Scheme of the Right to Request Remote Working Bill 2021 (the “Bill”), which it hopes to pass into law by summer 2022.  The Bill provides employees with a right to request remote working but not a right to remote working per se, which has attracted some criticism.  The Government has been criticised for the grounds of refusal being too wide and not enshrining a right to remote working rather than a right to request remote working into law.

14 March 2022

Press Releases

Dismissal held to be disproportionate sanction, yet award reduced as employee contributed to his dismissal

Facts: The Complainant was appointed as a cargo surveyor with the Respondent on 1st April 2004 and was promoted to Operations Manager in 2006. He was second in command to the General Manager, and he was not allowed take holidays when the General Manager was absent. However, arrangements had been previously put in place to allow the General Manager and the Complainant to be out of the office at the same time.

14 March 2022

Press Releases

Redundancy payments (amendment) bill 2022

The Redundancy Payments (Amendment) Bill 2022 (“the Bill”) was published on the 21st January 2022. The proposed legislation will amend the Redundancy Payments Act 1967 to provide for payments from the Department of Social Protection to employees who were laid off during the Covid-19 emergency period, beginning on 13 March 2020 and ending on 30 September 2021.

14 March 2022

Press Releases

Employee re-instated by wrc as redundancy process deemed a sham

In the recent WRC decision of Colin Dominic Kearns v Ata Tools, ADJ-00030876, Adjudication Officer Brian Dalton determined that although there was a genuine redundancy situation, the Respondent used the process to target the Complainant and therefore it was deemed to be an unfair dismissal.

14 March 2022

Press Releases

Reminder re gender pay gap information act 2021

As noted in our newsletter earlier this year, the Gender Pay Gap Information Act 2021 (the “Act”) was finally signed into law on the 13th July 2021. The Act amends the Employment Equality Act 1998 and will require regulations compelling certain employers to publish information relating to the remuneration of their employees by reference to their gender. While it had been expected that the regulations (clarifying the specific reporting obligations) would be published before the end of 2021, as yet, there is no update in relation to this. However, the reporting process is expected to begin from 2022 onwards.

14 March 2022

Press Releases

Issues and payments to be aware of re latest restrictions

On 17th December 2021, the latest restrictions were introduced which will have an adverse impact on the income for a number of businesses and their employees. Employers have had to lay off employees already and others are likely going to have to make layoffs in January. In anticipation of this, the Government announced significant expansion of supports to the businesses on 21st December 2021 and has also reopened the Pandemic Unemployment Payment (PUP) for new applicants for employees who have either lost their jobs or put on lay-off due to the recent restrictions. The Government has confirmed that the Employment Wage Subsidy Scheme (EWSS) is now open for such businesses to support payment of employees’ salaries and has relaxed some of the previous stricter requirements. In doing this the Government has sought businesses to keep their employees employed and not to lay them off.

14 March 2022

Press Releases

Reeling in the year 2021

It is appropriate at this time of the year to look back at some of the developments and the important cases that have shaped the landscape of employment law in Ireland in 2021.

14 March 2022

Press Releases

Hr’s control of the process removed its independence – labour court increases wrc award by over €10,000

In the recent decision of the Labour Court in the case of Frederick Hobson v Praxis Care, UDD2172 the Labour Court was so critical of the Respondent not subjecting the other employee involved in the incident to investigation or disciplinary process and its failure to facilitate an independent process, that it increased the award from €20,000 to €31,868.37.

14 March 2022

Press Releases

Supreme court confirms broad scope of the protected disclosures act & finds the code of practice is wrong

On 1st December 2021, the Supreme Court in Baranya v. Rosderra Meats found in favour of the Appellant and directed the case back to the Labour Court. The Supreme Court held that the Code of Practice on Protected Disclosures misstates the law and does not accurately reflect the terms of what the Protected Disclosures Act 2014 actually says. It went on to find that the scope of the 2014 Act includes breaches of statutory employment law obligations and grievances regarding an employee’s health. However, it acknowledged that this did not seem to be the intention of the Oireachtas.   

14 March 2022

Press Releases

Wrc increases burden on employers when upholding constructive dismissal claim

In the recent decision of the Workplace Relations Commission (“WRC”) of Jennifer Healy v De Paul, ADJ00026357 the WRC found in favour of the Complainant’s constructive unfair dismissal complaint, despite the Complainant’s failure to exhaust all internal procedures available to her.

14 March 2022

Press Releases

Update: sick leave bill 2021

The details of the highly anticipated Sick Leave Bill (“the Bill”) were recently published by the Department of Enterprise Trade and Employment. The Bill will see the introduction of mandatory employer Statutory Sick Pay scheme (“SSP Scheme”) for the first time in this jurisdiction. The Bill provides for an entitlement to a minimum period of paid sick leave for all employees in the event that they fall ill or sustain an injury which prevents them from being able to work. 

14 March 2022

Press Releases

Updated work safely protocol

On 22 October 2021 the Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar TD, published an updated Work Safely Protocol. This is the fourth revision since the Protocol was first published in May 2020 and follows shortly after the third revision that was published on 17 September 2021. It is based on recent public health advice received by the Government and follows the Government’s announcement on 19 October that public health advice would continue after 22 October.

14 March 2022

Press Releases

Covid-19 pandemic unemployment payment update

The Covid-19 PUP closed to new applicants from 8th July 2021. There has been gradual reduction in the PUP rates. As per the recent notification, the current rates of PUP are as below:

14 March 2022

Press Releases

Employee awarded €25,000 for employer’s failure to objectively justify retirement age

Facts: The Complainant, Anthony Kenny commenced employment with the Respondent, Bord Na Mona Plc, on 15th May 1975, as a General Operative until he retired in April 2020. He thereafter requested to work beyond his retirement age. A meeting was convened in December 2019 and a correspondence declining his application was issued to him. The application was declined on the basis of (a) conditions of employment in relation to retirement age; (b) pension scheme rules; (c) custom and practice of the Respondent; and (d) employee’s entitlement to draw down a pension. This however did not refer to the Code of Practice on Longer Working nor did it provide an objective justification for the refusal.  The Complainant appealed this decision and was issued an outcome of the appeal on 15th January 2020 confirming the above 4 headings and further added that “due regard to the health and safety requirements given the physically demanding nature of the general operative role and tasks associated with that role”.

14 March 2022

Press Releases

Labour court finds company’s mandatory retirement age justifiable

Facts: The Complainant commenced employment with the Respondent Company as a Service Engineer on 1st September 1989.  His employment ceased due to his reaching his 65th birthday on 21st January 2020.   The Complainant initiated a claim against his former employer under the Employment Equality Acts 1998-2015 (the “Act”).  He claimed that he was discriminated against on the basis of age.  The WRC hearing this claim on 10th February 2020 and the Adjudicator did not find in favour of the Complainant.   The Complainant then lodged an appeal against this finding to the Labour Court.

14 March 2022

Press Releases

Labour court increases complainant’s award for failure to provide reasonable accommodations for her disability

Facts: The Complainant’s employment transferred to the Respondent by way of a transfer of undertaking in August 2018. Her previous employer had made reasonable accommodations for her due to her Achilles Tendonitis and based on the advice from Occupational Health. The Respondent would not apply the agreement made between the Complainant and her previous employer.

14 March 2022

Press Releases

Labour court substantially increases award for sexual harassment

Facts: This was an Appeal by the Complainant, a 19 year old female barista, against a Workplace Relations Commission (“WRC”) decision that she should be awarded €3,500 on foot of a sexual harassment claim that resulted in her feeling stressed and anxious, certified out sick and ultimately resigning her position.

14 March 2022

Press Releases

Wrc held wages are not ‘properly payable’ during lay-off period & such non-payment cannot be a breach of payment of wages act

Facts: The Complainant joined the Respondent’s engineering contracting firm on 26th August 2019 as a mechanical estimator on an annual salary of €65000. He was laid off on 27th March 2020 when the closure of the construction sector due to the Covid-19 pandemic. The Complainant was not brought back when certain employees were brought back to work in June 2020 and was given four weeks’ notice of redundancy.

14 March 2022

Press Releases

Maximum award for mandatory retirement as no justification

Facts: 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.

14 March 2022

Press Releases

Employee held to be unfairly dismissed regardless of admitting to alcohol consumption hours before starting work

Facts: Eduard Markovskij, the Complainant, commenced employment with Suretank Limited, the Respondent, on the 29th of August 2007 as a welder. His average weekly net pay was €693.80. He reported for work at Depot 1 on 14th September 2020 at 2pm. He met Manager A who sent him to Depot 2. This was not out of the ordinary for the Complainant. When the Complainant arrived at Depot 2, the manager there, Manager B, formed the view that the Complainant was unsteady, smelled of alcohol and appeared to be under the influence. Manager B contacted Manager A, who drove to Depot 2 to observe the situation for himself. He stopped in a pharmacy on the way to purchase an alcohol testing kit, but they were out of stock.

14 March 2022

Employment

Covid 19 – a timely reminder of employer obligations in respect of layoff, short time and redundancies

The first part of May saw a number of developments in relation to returning employees to work including the publication of the  Government’s “Roadmap for reopening society and business” on 1st May and the subsequent publication of the “Return to Work Safety Protocol” on 9th May. For further detail on these developments and employer obligations upon returning employees to the workplace have a look at our recent article “Returning to Work – the New Normal”, available at this link.

19 June 2020

Employment

Covid-19 and employment law – milestones in may

May has been a very busy month from an employment law perspective. There have been a number of government announcements and updates that directly impact employer and employee obligations and entitlements. These updates are summarised below:

19 June 2020

Employment

Interesting decision on extension of employment post-mandatory retirement age

The Complainant was employed as Operations Manager from 1982 to 17th June 2019 and was paid €54,451.92. The Respondent has a mandatory retirement age of 65 years. The Complainant was due to turn 65 years on 14th June 2017. He requested the HR that he wished to remain in employment and received a written contract for that year from the date of his retirement. The following year, he requested to continue employment, which was agreed by the Respondent and the Complainant received a written contract to continue employment for another year. On 18th April 2019, the Complainant was advised that the CEO of the Respondent Company would not be extending the Complainant’s employment further and that his employment would end on 17th June 2019.

10 June 2020

Employment

Max two years’ salary awarded for discriminatory dismissal

On 20th March 2019, the Respondent terminated the Complainant’s employment with immediate effect for alleged failure by the Complainant to furnish medical certificates for a period of 18 days. The Complainant was a full time counter hand/ shop assistant with the Respondent from 2nd June 2015.

10 June 2020

Employment

Significant constructive dismissal decision – award included financial loss while on unfit to work

The Complainant was employed by the Respondent for just under 29 years. The Respondent operates a hotel/guesthouse and conference centre. The Complainant had no written contract of employment but held the most senior position – Manager/General Manager before the Respondent hired a CEO and carried out a restructure. The Complainant’s responsibilities were transferred to the new role of Hospitality Manager which reported directly to the CEO and a further layer of management was introduced who all reported to the Hospitality Manager. The Complainant was offered the demoted role of Revenue Manager and to report to the Hospitality Manager. Her salary was not going to be altered but her responsibility was diminished. She was presented with a new written contract but refused to sign it.  The Complainant was subjected to further isolation in the new demoted role which had a serious impact on her health and mental wellbeing with the result that she went out on certified sick leave on 3 January 2018 and ultimately resigned her position on 18 May 2018.

10 June 2020

Employment

Bartender awarded one year’s pay for dismissal after serving alcohol to an underaged customer

The Complainant commenced employment with the Respondent pub in March 2014 as a Bar Tender. On 4th July 2019, the Respondent alleged that the Complainant served alcohol to two customers who were under the age of 23 years without asking for age identification and they turned out to be 17 years old and 18 years old. The Respondent had a mystery shopper at the premises at the time. The Complainant was suspended on pay and a disciplinary process was initiated. A disciplinary hearing took place on 8th July and the Complainant’s dismissal was confirmed by letter of 12th July for Gross Misconduct. The Complainant appealed the outcome, which was heard on 31st July 2019 and the dismissal was confirmed.

10 June 2020

Employment

€104,000 awarded to employee for unfair dismissal due to employer’s conduct

The Complainant was employed as the Operations Director for the Respondent and had been employed by the Respondent for 26 years. The Complainant had a close personal relationship with Mr C, the owner and knew him for about 31 years and he was the godfather of the Complainant’s only daughter.

10 June 2020

Employment

Update in respect of covid-19 temporary wage subsidy scheme

n a previous article dated 30th March  2020 (available here), we discussed the workings of the Government’s Temporary Wage Subsidy Scheme which is aimed at helping employers to keep employees on the payroll for the duration of the Covid-19 crisis (whether or not those employees are still working) so that businesses can resume normal operations more easily after the crisis.

24 May 2020

Employment

Covid-19 temporary wage subsidy scheme

On Friday 27th March, 2020, the Emergency Meausures in the Public Interest (COVID-19) Bill 2020 was passed by the Dáil Éireann. Section 28 of the Bill is a key provision from an employment law perspective. It provides a legislative basis for the recently introduced Temporary Wage Subsidy Scheme (the “Scheme”) being operated by the Irish Revenue Commissioners (Revenue).

24 May 2020

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