Anne O'Connell Solicitors

In the recent high-profile case of Gary Rooney v Twitter International Unlimited Company (ADJ – 00044246)...

The recent determinations of the Labour Court in Parnells GAA Club, Parnells GAA Club LTd v Leigh Fogarty (Decision No’s RPD2420 & RPD2419) are noteworthy for any employer faced with a possible layoff situation.

In a recent decision of the Workplace Relations Commission (“WRC”) in Gareth Elliot v Legs Eleven Limited...

In A Solicitor v A Construction Consultancy Business (ADJ-00046911), the Complainant brought a complaint to the...

As highlighted in our previous article in June 2022 entitled “Employers to Begin Mandatory Reporting of Gender Pay Gap...

In Matthew McGranaghan v. MEPC Music Ltd (ADJ-00037668), the Complainant brought a number of complaints...

Supreme Court Rules High Court Erred in Re-engaging School Principal in a Manner that Meant He was Effectively Reinstated...

In a recent decision of the Workplace Relations Commission (“WRC”) in Alina Karabko v Tiktok Technology...

In a recent decision of the Workplace Relations Commission (“WRC”) in Darryl Scales v Ennistymon Parish...

In the case of Abdulah Aljaber v Dawn Meats Group Unlimited Company (ADJ-00036503), the Complainant brought...

An increase in the amount of Parent’s Leave was expected this year following Budget 2024.

In Jennifer Clancy v The Manager, Templeogue College (ADJ-00042323) the Complainant lodged a number... In Jennifer Clancy v The Manager, Templeogue College (ADJ-00042323) the Complainant lodged a number of claims with the Workplace Relations Commission (”WRC”), including a complaint under the Protected Disclosures Act, 2014 (“the Act”) which were heard before Adjudication Officer, Breiffni O’Neill. Facts: The Complainant commenced employment with the Respondent in 2018 as a part-time teacher in the Spanish Department. Due to her family circumstances, she had agreed with the Principal at the time that she would receive mostly morning classes, and that if she was required to work afternoons, it would be agreed in advance and she would be given ample notice so that she could arrange childcare. The Complainant worked no more than one afternoon a week for at least three years, and she was given sufficient notice in advance. It was common practice within the school that teachers would continue to teach the same cohort of students through the school years in order to ensure continuity for both teachers and students. On 7th February 2022 the Complainant signed a collective grievance, along with 10 other colleagues.  This grievance included concerns around dignity in the workplace, data protection, health and safety and timetable issues, among other matters.  It was accepted by the Respondent that the grievance constituted a protected disclosure. The Complainant claimed that the Principal’s behaviour towards her changed following the making of this protected disclosure, and a number of issues arose between them. Prior to the school year 2022 to 2023, the Complainant received a timetable consisting solely of afternoon classes. This was despite her colleagues in the Spanish Department being available to teach afternoon classes which, if allocated to them, would have allowed her to teach the morning classes. This seemed to be the sensible thing to do as it would also allow her to continue to teach the cohort of students she had previously taught as was standard practice within the school.  The Complainant attempted to raise this with the Principal immediately, but she was ”unavailable”.  On a fourth attempt, she managed to speak to the Principal, who said that the hours could not be changed and that her requirement to work morning hours “could not always be accommodated”.  Ultimately the Complainant contacted her ASTI representative as she felt that the Principal’s tone had changed and that she was being approached more aggressively. Two days later, the Principal arranged a meeting to speak with the Complainant who attended on 26th August 2022, with her trade union representative. However, the Principal was aggressive and demanded an explanation for the Complainant’s absence at an afternoon session of the Haddington Road staff meeting and did not address the matter of the timetable at all.   The Complainant had no knowledge that this was to be discussed at the meeting and had presumed that it was to discuss the timetable. The Principal was so irate at this meeting that she was asked to calm down a number of times and ultimately the Complainant had to suspend the meeting. On 29th August 2022, the Complainant’s trade union representative wrote to the Principal outlining that the Complainant would have no choice but to resign if her hours were not changed, and notified the Respondent that she was invoking the ASTI grievance procedure. During this time, the Complainant suffered a flare up in her auto immune condition due to stress, and was certified unfit to work until 26th September.  She received a letter invoking the disciplinary procedure against her on 29th August which lacked detail as to the allegations against her and failed to comply with Department of Education Circular 0049/2018. The Complainant queried this matter with the Principal, but was informed that the letter  “crossed” with the medical certificate and answered no further. The grievance procedure commenced in early September and despite it being an issue raised in her grievance letter, the Principal refused to deal with the issue around the disciplinary letter being sent to her.  Regarding the timetabling difficulties, the Principal did offer a solution to this, but did not address issues relating to the treatment of the Complainant. The Principal’s suggestion was not satisfactory to the Complainant, and the Complainant made a counter proposal which went unanswered. The grievance procedure stipulated tight deadlines for each stage and due to the lack of response to her proposals, she then indicated her intention to move to stage 2. The Respondent did not engage appropriately with stage 2 within the timeframe and therefore stage 3 was instigated. This involved the Complainant being invited to a meeting before the Board of Management accompanied by a colleague. At this meeting, contrary to the terms of the grievance policy, the Principal was in attendance, which the Complainant contended was intimidating for her.  The Complainant requested the Principal and Deputy Principal to recuse themselves as the policy stated that their involvement should only be in writing at this stage.  The recusal request was refused, and the meeting proceeded noting the Complainant’s objection. The Complainant had provided significant written submissions prior to the meeting with initially the Board refused to address as they were “too big”. However, upon the request of another board member, they were eventually provided to members of the Board. After a break where the Principal, Deputy Principal and JMB representative left the room, they returned and the Principal proceeded to make a submission to the Board of Management. The Complainant was not afforded the right to respond to the submission made. At the end of this stage, mediation was recommended to the Complainant. Despite the Complainant saying that she would need to consider this, she received a letter stating that she had agreed to it. Refuting this suggestion, she requested to move to stage 4 of the grievance procedure. A damaging report was prepared by the Board of Management (written by the Principal) which was then shared with the Stage 4 panel despite the Complainant’s solicitor’s objections to same. During Stage 4 of the process, the Principal made new claims that the Complainant had worked afternoons previously and provided evidence from VSware which the Complainant claimed was altered information. The Stage 4 Tribunal did not uphold the Complainant’s grievances and therefore she lodged her complaint with the WRC. Decision: It was agreed by the Respondent that the Complainant had made a protected disclosure within the meaning of the Act. Therefore, the Adjudicator was required to determine whether the Complainant was penalised for doing so having regard to the legislation and established tests. Section 12(1) of the Act which sets out as follows: “An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.” Section 3 provides examples of what amounts to “penalisation” within the meaning of the Act. The Complainant alleged that she was subjected to penalisation by the Principal, the Board of Management, and members of the Tribunal at various stages of the grievance process. The Adjudicator considered each stage separately and found as follows: Stage 1 of the grievance process – there was no penalisation as the Principal did attempt to reach a compromise with the Complainant, and the fact that the Complainant rejected the compromise did not amount to penalisation. Stage 3 of the grievance process – there was no penalisation by the Board in handling this stage of the process because they sought to resolve matters through mediation, even though the manner in which they did so was disingenuous. Stage 4 of the grievance process – there was no penalisation as the tribunal members were independently appointed by the Complainant’s union and the Respondent’s managerial body. He then considered the Complainant’s claims regarding: the change of hours change of classes the Principal shouting at the Complainant during the meeting of 26th August the threat of disciplinary action Considering each of these matters, he found as follows: The change of hours The Respondent disregarded the working arrangement which had been in place for a number of years when it attempted to change the Complainant’s timetable requiring her to work afternoons in the school year following the making of a protected disclosure by the Complainant.  This constituted penalisation under section 3(1)(c). The change of classes It was well established in the school that teachers continued with their students and the change to senior cycle students who the Complainant had never taught before constituted penalisation under section 3(1)(f). The Principal shouting at the Complainant during the meeting of 26th August The Principal shouting at the Complainant at a meeting to discuss the altered timetable on the 26th August 2022, causing her to feel intimidated by the Principal constituted penalisation under section 3(1)(e). The threat of disciplinary action The Respondent sought to initiate disciplinary proceedings against the Complainant causing damage to her reputation which constituted penalisation contrary to section 3(1)(m). Once it was established that a protected disclosure was made, and that penalisation occurred, it was for the Adjudicator to determine whether the penalisation occurred because of the protected disclosure that was made. The Adjudicator was satisfied that the Complainant successfully established a connection between the protected disclosure and penalisation and met the “but for” test as set out in Anna Monaghan and Aidan & Henrietta McGrath Partnership PDD162, notwithstanding that there was no evidence that the other signatories on the collective grievance had been penalised. Turning to the award, the Complainant’s representative argued that as the Act provides for an employer may be required to pay “compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 260 weeks renumeration”, consideration should be given to the significant legal costs incurred by the Complainant. However, the Adjudicator agreed with the Respondent’s legal representative that as a matter of public policy, legal fees should not be considered when determining the appropriate award. The Adjudicator also agreed with the Respondent’s legal representative that any stress or injury suffered by the Complainant should also be disregarded as these matters should have been the subject of a Personal Injury claim instead, as per Justice O’Donnell in Dillon v Irish Life Assurance plc IEHC 203. The Adjudicator awarded the Complainant compensation amounting to 15 months’ salary, having given careful consideration to the intention of the Act to provide a high level of protection to those who are penalised as a result of making a protected disclosure, and the need for the award to be effective and dissuasive. The Adjudicator also gave consideration to the requirement set out in Von Colson for awards to be proportionate. He noted that the Complainant did not adduce evidence regarding financial loss, and she did not claim reputational damage arising from the penalisation. Takeaway for Employers: The Protected Disclosures legislation gives extensive protections to employees who “blow the whistle”, and awards are intended to be dissuasive. It is vital for employers to ensure that they investigate protected disclosures appropriately, and that they ensure that employees are not subjected to treatment which may amount to penalisation under the Act. Link  - ADJ-00042323 - Workplace Relations Commission Authors – Nicola MacCarthy and Jenny Wakely

In the case of Catherine Crabbe v Grosvenor Cleaning Services Limited t/a Grosvenor Services (ADJ-00049787)...

In Georgina O’Driscoll v Daffodil Care Services Unlimited Company (ADJ-00040760) the Complainant...

In John-Paul Barbour-Hyland v Daa Plc Dublin Airport Authority (ADJ-00048082), the Complainant brought...

In a recent decision of the Workplace Relations Commission (“WRC”) in Linda Moran v English By Design Limited..

Patricia Groarke v Pat The Baker (ADJ-00048826) is a decision of the Workplace Relations Commission (“WRC”)...

Facts: Aisling Murphy (the “Complainant”) was a pharmacist who was employed by the Madigan’s Pharmacy Kilkenny...

Supreme Court. The Supreme Court has this month issued an important Judgement in the case of Seamus...

In Wim Naude v University College Cork (ADJ-00042625), the Complainant brought a...

Facts: In the WRC case of Padraic O’Toole v. Department of Agriculture, Food & The Marine... Probationary Periods must be Proportionate to the Length of a Fixed Term Contract In An Assistant Lecturer v An Institute of Technology (ADJ-00050085) the Workplace Relations Commission (the WRC”) examined the issue of proportionality in probationary periods. The Complainant was employed by the Respondent institute as a part-time assistant lecturer on a 24-month fixed term contract of employment. His probation period was 12 months long. He brought complaints to the WRC under the Terms of Employment (Information) Act, 1994 (the “1994 Act”) and the Protection of Employees (Fixed-Term Work) Act, 2003 (the “2003 Act”) challenging the length of the probation period.. Decision: The Adjudicator, Mr. David James Murphy, considered section 6D of the 1994 Act, which states: “ (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months. (2) The probationary period of a public servant shall not exceed 12 months.” Both parties agreed that the Complainant is a public servant and that a 12 month probation period was in compliance with this Act. The Complainant advanced two arguments under the 2003 Act. The first was that his probation clause constitutes less favourable treatment when compared with permanent staff. The second was that it was disproportionate to the overall length of the contract. The Adjudicator considered that all employment contracts issued by the Respondent provide for a probationary period of 12 months and therefore did not accept that the Complainant established that he had been treated less favourably than a comparable permanent employee. The Adjudicator then considered whether the probationary period was proportionate. The Adjudicator referred to the amendment that was made recently to the 2003 Act to incorporate Directive (EU) 2019/1152 on transparent and predictable working conditions. Section 9A of the 2003 Act now states as follows: “9A. (1) Notwithstanding section 6D of the Terms of Employment (Information) Act 1994 , where a fixed-term employee has entered into a fixed-term contract with an employer which provides for a probationary period, the length of such probationary period shall be proportionate to the expected duration of the fixed-term contract and the nature of the work. (2) Where an employer proposes to renew a fixed-term contract for the same functions and tasks, the fixed-term contract shall not be subject to a new probationary period. (3) A word or expression that is used in this section that is also used in Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 201910 on transparent and predictable working conditions in the European Union has, unless the contrary intention appears, the same meaning in this section that it has in that Directive.” The Adjudicator accepted that a probationary period of 12 months in a 24 month contract is high, however this does not necessarily make it disproportionate, but it put the onus on the Respondent to show how it is not. The Respondent’s explanation to the WRC as to how the probationary period was set was that it was decided by a sectoral agreement. The Respondent did not provide justification for the probation period. The Adjudicator commented that there was nothing related to the Complainant’s role that required such a long period of probation. The Adjudicator noted that the Respondent did not dispute the Complainant’s evidence that he had never even received a performance review with his manager and that there was no structured probation policy in operation where an employee is assessed against stated goals. The Adjudicator held that the probationary period of 12 months was not grounded in any process to monitor performance or provide feedback, but rather appeared to be just a threat of sudden dismissal. In those circumstances, the Adjudicator held that the probationary period was disproportionate and awarded the Complainant €1,000 in compensation. He also directed that the Complainant’s probationary period be reduced to six months from the commencement of his employment. Takeaway for Employers: This decision is a reminder to employers about the changes to probationary periods following the implementation of Ireland’s obligations under EU Directive 2019/1152 on transparent and predictable working conditions. In the private sector, a probationary period should not exceed six months save where there is an exceptional basis for it to be longer and in any case, it may not exceed 12 months. Furthermore, extensions to probationary periods can only be made if they are in the “interests of the employee”. Both the legislation and this decision affirm that in the public sector, probationary periods may be longer (up to 12 months). However, the onus is on the public sector employer to demonstrate that the length of the probationary period is not disproportionate. Employers should note that the low award in this case should be read in the context that the Employee had specifically confirmed he did not want any compensation. Link - https://www.workplacerelations.ie/en/cases/2024/april/adj-00050085.html Authors – Jane Holian and Laura Killelea

The Labour Court in Aer Lingus Limited v Virginia Linehan (UDD2418) has upheld the Workplace...

The Labour Court (the “Court”) has recently issued its decision in Saint John of God Community Services...

In the recent case A Complainant v A Media Company (ADJ-00043525) the Complainant alleged she...

The Complainant in Lauren McBride v. FSR Atlantic Ltd t/a ADHD Now (ADJ-00049238) alleged several...

In the Labour Court case Mater Misericordiae University Hospital v Adrian Stefan (DWT2415)...

Facts: In the WRC case of Padraic O’Toole v. Department of Agriculture, Food & The Marine...

WRC Awards €8,000 for Penalisation of a Whistleblower. In Bruno Seigle – Murandi v Roche...

A Verger v A place of worship/heritage site ADJ-00027984 concerned an unfair dismissal case ...

Former Manager Awarded €40,000 in Successful Constructive Dismissal Claim. In Caroline McGarry v JTI...

Employer Falls Foul of TUPE Regulations in WRC. Tony Breslin v Trinity Motors Wicklow Limited...

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

A series of recent WRC cases on the issue of retirement age demonstrate the importance of forward...

A recent Court of Appeal decision in the case of Hegarty v The Commissioner of An Garda...

Facts: The Complainants in Ms Roxana Doba v AFM Facilities Limited ADJ-00043540 and Ms...

Walsh v Kerry County Council [2023] IEHC 719 concerned a recent appeal on a point of law from...

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”).

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,

In Thomas Doolin v Eir Business Eircom Limited ADJ-00045261 the Complainant, Mr Doolin, brought a complaint to the Workplace Relations Commission (the “WRC”) under the Employment Equality Acts claiming that he was discriminated against on the grounds of age.

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

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.

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.

In A Worker v A Massage Therapy Business ADJ00043225 the Complainant lodged a number of complaints with the Workplace Relations Commission (“WRC”), including a penalisation complaint pursuant to the Protected Disclosures Act 2014.

Buinenko v Lidl Ireland Gmbh Lidl Head Office ADJ-00033871, concerned a complaint under the Unfair Dismissals Acts 1977-2015.

A Verger v A place of worship/heritage site ADJ-00027984 concerned an unfair dismissal case before the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977 to 2015 (the “Acts”).

With the festive season approaching and Christmas parties firmly back on the agenda, we look at some...

In Thomas Doolin v Eir Business Eircom Limited ADJ-00045261 the Complainant, Mr Doolin, brought...

In A Worker v A Massage Therapy Business ADJ00043225 the Complainant lodged a number...

Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889 concerned a complaint...

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

On 20th November 2023, the Minister for Public Expenditure, NDP Delivery & Reform published new Statutory...

Update – Paid Domestic Violence Leave. On 27th November 2023, paid domestic violence leave came...

Buinenko v Lidl Ireland Gmbh Lidl Head Office ADJ-00033871, concerned a complaint under...

Maximum Compensation Awarded against An Post in Sexual Harassment Claim. In Catherine Kelly v An Post...

The Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”) was signed into law by the President on 4th April 2023.

In Access IT CLG/Access IT v Andrea Galgey[1], the “Respondent” appealed the redress ordered by the Workplace Relations Commission (“WRC”) to the Labour Court (“Court”).

This case was a Labour Court (“Court”) appeal from three decisions of the Workplace Relations Commission (“WRC”) regarding complaints under the Employment Equality Acts, 1998-2015 (the “Acts”).

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.

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.

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.

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.

In Sylwester Michalski v Strandvous Limited the Respondent Company did not provide a translator to its Polish national employee with poor English, allow him access to all the witnesses and incorrectly determined his actions to constitute gross misconduct during the disciplinary process.

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.

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.

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.

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.

In the High Court case of Philomena Hennessy (the “Plaintiff”) v. Ladbrooks Payments (Ireland) Ltd and Ladbrooks (Ireland) (the “Defendants”, Ms Justice Bolger refused to grant a High Court Injunction seeking to dismiss the Plaintiff’s personal injury case regardless of the fact that she had signed a Waiver Agreement.

In its recent decision in the case of Doreen Nolan v Alsaa, ADJ-00029859 on the issue of mandatory retirement ages, the WRC awarded a female employee one year’s pay as compensation for discrimination on the grounds of both age and gender.

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.

On 31 January 2022 the Department for Enterprise, Trade and Employment, published The Transitional Protocol: Good Practice Guidance for Continuing to Prevent the Spread of COVID-19 (“The Protocol”), an update to the Work Safely Protocol last published 14 January 2022.

In the recent decision of Robert Libera v Regeneron Ireland DAC, ADJ-0023417, the WRC determined that although the Complainant had been unfairly dismissed for gross misconduct, he had contributed to his dismissal and therefore reduced the award by 40%.

Facts: This was an unfair dismissal case in which the Complainant, Mr Ray Walsh, claimed that his dismissal by the Respondent, Econocom Digital Limited, was a sham redundancy and fair procedures were not followed.

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’).

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.

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.

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.

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.

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.

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.

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.

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.

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.   

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.

Facts: The Complainant was employed as a photographer with the Respondent, who operates a “Santa’s Grotto Experience”, from 22nd November 2019 to 23rd December 2019.

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. 

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.

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:

In the recent decision of the Labour Court in the case of Kevin Roberts v United Parcel Service of Ireland Ltd, ADE/20/115, the Court overturned the decision of the WRC Adjudicator, deciding that the dismissal of Complainant was discriminatory dismissal, and he was not afforded reasonable accommodation.

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”.

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.

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.

Facts: This was an appeal by the Respondent, Camphill Communities of Ireland, against a WRC decision that the Respondent unfairly dismissed the Complainant, Ms. Elke Williams. The WRC had awarded compensation in the amount of €40,000.

The WRC Adjudicator, Pat Brady, centred his decision around the Respondent’s use of CCTV footage to discipline and ultimately dismiss the Complainant and the application of the ‘zero tolerance’ policy.

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.

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.

Facts: This was an appeal by the Complainant, Mr Nicholas Folan, of a WRC decision that he had not been unfairly dismissed by the Respondent, Smurfit Kappa Ireland Ltd. The Complainant sought redress in the form of reinstatement.

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.

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.

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.

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:

The Complainant has just over one and half years of service with the Respondent and was made redundant, while a colleague with lesser service with the Respondent was retained. The Complainant claimed the personal animus between her and the new Managing Director and her request for salary increase has influenced her selection for redundancy.

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.

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.

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.

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.

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.

The Complainant commenced employment with the Company (a producer and retailer of specialised pork products) in September 2005, starting as a general operative and before her employment was terminated in May 2019, she held the position of supervisor.

Practical tips on implementing the governments Return to Work Safety Protocol

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.

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).

WRC: Dealing with adjudication complaints during the period of Covid-19 related restrictions.

The High Court has dismissed a challenge to the constitutionality of the Workplace Relations Commission procedures in the case of Zalewski v Workplace Relations Commission [2020] IEHC 178.

The well-publicised recent High Court decision in the case of Ryanair DAC v Bellew [2019] IEHC907 has highlighted the importance of making sure restrictive covenants are tightly drafted and well-tailored to the facts of the situation.

The Supreme Court decision handed down in the long running case of Nano Nagle School v. Marie Daly [2019] IESC 63.The case raised very important questions around how the duty of an employer to provide reasonable accommodation to employees with disabilities should be interpreted.