High Court Has No Jurisdiction in Employment Claim to Workplace Relations Commission

If you have ever been dissatisfied or critical of the Workplace Relations Commission in relation to an employment dispute and you have wondered whether you are able to canvas your complaints in the Civil courts a recent (June 2019) High Court decision clarifies the matter.

In Maurice Power v HSE [2019] IEHC 462 Mr. Power asked the High Court to step in and prevent his removal by his employer, the HSE, from his role as CEO of Saolta University Healthcare Group. Importantly from the perspective of the sought High Court intervention Mr Power had already submitted a complaint to the WRC (Workplace Relations Commission) seeking an order that he was entitled to a CID (contract of indefinite duration).

The question then arose as to whether the High Court could interfere in the case or was it obliged to let the WRC deal with the matter.

Background to Mr Power’s case

Mr Power had been employed by the HSE since 1999. In 2014 he was asked to take on the role of interim Chief Executive Officer of the Saolta University Healthcare Group. In 2018 the HSE decided to hold a competition to appoint a permanent CEO and held a competition in which Mr Power was unsuccessful.

Mr Power then claimed he was entitled to a contract of indefinite duration (‘CID’) pursuant to the Protection of Employees (Fixed-Term Work) Act 2003 by reason of his employment on a series of fixed term contracts. He brought a claim to the WRC for an order that he was entitled to a CID.

High Court

Before Mr Power’s complaint was heard by the WRC he sought an order from the High Court preventing his removal from the post and preventing the appointment of anyone else to the position.

The High Court took the view that as Mr Power’s rights under the Protection of Employees (Fixed-Term Work) Act 2003 were statutory rights the correct venue to uphold those rights was the WRC. For this reason, the High Court decided it had no jurisdiction in the matter and could not make the order sought by Mr Power.

Mr Justice Allen held that the administrative tribunals such as the WRC and Labour Court were appointed by the Oireachtas to enforce these statutory rights and the High Court could not interfere.

The Court also held that the orders sought by Mr Power were intended to shape the decision of the WRC when the hearing was held and that even if he was unsuccessful at the WRC he would not lose his job but revert to a previous role. The Court also held that if he was successful damages would be an adequate remedy for Mr Power.

For these reasons the application for an injunction failed.

Occupational Stress and Actionable Workplace Stress-the Crucial Difference

In the course of my work, on a daily or weekly basis, I meet employees who tell me they are ‘stressed’ or have been signed off work by their doctor due to workplace stress. When I discuss the matter more fully I discover a wide range of reasons as to why the employee feels stress.

She may have made a complaint about a colleague and there is an investigation under way; he may be subjected to a personal improvement plan as a consequence of perceived inadequate performance; she may be subjected to a disciplinary process arising from an allegation of misconduct; he may be feeling the pinch financially and the promised bonus or pay rise has failed to materialise; she may be in danger of failing her probation.

All of these things cause stress.

But are they actionable? Can a legal action be successfully mounted and the employer held in breach of contract or found to be negligent?

Occupational stress v actionable workplace stress

There is an important difference between occupational stress and actionable workplace stress.

The Courts have long held that occupational stress is normal and inevitable.

Work is not play or recreation or entertainment, after all, and it is natural and inevitable that a certain amount of stress will attach to the job. You may work in a shop, you may be a nurse, Garda, pilot, cleaner, solicitor, accountant, work in a factory or warehouse-regardless, your job will always have a certain amount of stress attached.

What is actionable workplace stress? The courts have addressed this question in a number of seminal cases including Berber -v- Dunnes Stores Limited [2009] IESC 10, a Supreme Court decision. In this case the Supreme Court accepted and approved the principles set down in an England and Wales Court of Appeal (Civil Division) Decision of Hatton v Sunderland [2002] 2 All ER 1.

These legal principles are:

1. The ordinary principles of employer’s liability apply.

2. The threshold question is whether the kind of harm to the particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).

3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.

4. The employer is generally entitled to take what he is told by his employee (including what he is told by the employee’s medical adviser) at face value unless there is good reason to think to the contrary.

5. The indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.

6. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the cost and practicability of preventing it, and the justifications for running the risk.

7. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.

8. If the only reasonable and effective steps would have been to dismiss or demote the employee the employer will not be in breach of duty in allowing a willing employee to continue in the job.

9. In all cases it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.

10. The claimant must show that the breach of duty caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.”

If you read through these principles you will see, in essence, that the employee must prove at least 4 things:

  1. There was a duty of care to the employee
  2. The harm was reasonably foreseeable
  3. The harm caused an injury to the employee’s health
  4. The harm was a consequence of stress at work

The easy part of this test is proving the employer had a duty of care to the employee for this is self evident.

Conclusion

There is a world of difference between ordinary occupational stress and actionable workplace stress. Occupational stress is a simple fact of working life and will not give rise to a successful legal action; actionable workplace stress is actionable but you must prove you have suffered a recognised mental injury and the employer was legally negligent.

Probation in the Irish Workplace-the Essentials

Most employees are put ‘on probation’ in a new employment before their position is confirmed.

Most employment contracts will state that the position will only be confirmed on satisfactory completion of the probationary period.

A typical clause in an employment contract will read ‘Subject to satisfactory completion of the probationary period specified below, you will be employed on a full time permanent basis until your employment is terminated by either party giving to the other the notice period specified in the notice clause’, or words to that effect.

Employee suitability

During the probationary period the employee’s suitability for the role will be assessed and it also allows the employee become integrated into the organisation and learn the ethos of the employer’s business.

The duration of a probationary period can range from 3 months to 11 months but should not exceed 12 months, regardless.

Also, even if a probationary period is for 6 months there will almost certainly be a provision in the contract for the extension of the period up to the maximum 11/12 months.

Review meetings

Regular review meetings should be held during probation and feedback given to the employee as to how she is doing with a final meeting just before the end of the probationary period. If the employee is underperforming, she should be advised of this as soon as possible.

At the end of the probationary period the employee should be told whether they have passed, failed, or the period is to be extended.

If the final decision is termination the likelihood is the contract will provide for only 1 week’s notice from the employer during the probation period. The employee may have the right to appeal this decision but the full panoply of policies and procedures-such as disciplinary and/or grievance and/or dignity at work-will not be open to the probationary employee.

However, there will be some method by which a formal grievance or complaint may be made by the employee and there will be a disciplinary procedure, albeit a truncated or amended version of the full procedure.

Probation dismissal

As an employee who is dismissed on or at the end of probation he will not have the necessary 12 months’ service to avail of the reliefs provided by the Unfair Dismissals Act 1977.

There are some limited remedies open to the employee, however, which do not require 12 months’ service. Such claims would be founded on a discriminatory ground or perhaps for having made a protected disclosure.

Further reading

Options open to probationary employees

Advice for employees on probation

The Sunday Premium Rate of Pay-How Much Should Be Paid for Working on Sunday?

If you work on Sunday you are entitled to be paid a premium pursuant to section 14 of the Organisation of Working Time Act 1997,

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

Paid time off or an allowance

You will note from section 14 of the Organisation of Working Time Act 1997 above that the Sunday Premium can be in the form of paid time off or the payment of an allowance of such amount as is reasonable in the circumstances.

Increased rate of pay

You will see that no specific amount is set out in the act for the rate of pay, it refers to ‘what is reasonable having regard to all the circumstances’. This leaves the Sunday Premium rate of pay open to negotiation between the parties and if agreement cannot be reached there may be a dispute referred to the WRC or Labour Court.

Labour Court guidance

It is to the Labour Court that we turn for guidance as to what is considered to be ‘reasonable’.  And from the decided cases we note a pattern emerging of the Labour Court finding that time and a third is considered to be ‘reasonable’ when it comes to the rate of pay.

Cases to be reviewed on this point include:

  • Chicken and Chips Limited t/a Chicken Hut and David Malinowski [DWT159]
  • Viking Security Limited and Valent [DWT1489]

However, the 33% premium is not a hard and fast rule and all the circumstances will be considered which led to a 25% premium being accepted as reasonable and even a 14% premium being accepted in Cadbury Ireland Limited v SIPTU [DWTO0720].

If you are an employer, therefore, you would have to be considering a Sunday Premium of at least 25% to have a good, stateable case that it is a ‘reasonable’ rate as envisaged by the Organisation of Working Time Act 1997.

Benefit in Kind not acceptable

The Labour Court has held that a premium must be paid and a benefit in kind-for example a free meal-is not acceptable and is not what was envisaged by the legislators when framing the act.

Composite rate of pay

If the contract of employment includes a rate of pay which claims to incorporate a Sunday Premium then the Sunday Premium must be identifiable; it is not good enough to simply state your rate of pay includes a Sunday Premium.

This is an easy mistake for an employer to make.

The 5 Day Statement of Core Terms When Commencing Employment

Are you an employer?

Did you know that since 4th March 2019 you are obliged to give a statement of ‘core terms’ to the employee within 5 days of her commencing employment?

This is known as the ‘5 day statement’ and is pursuant to section 7 of the Employment (Miscellaneous Provisions) Act 2018 and the Terms of Employment (Information) act ,1994 and 2001.

The statement must contain the following particulars:

  • The names of the employer and employee
  • The address of the employer
  • The duration of the contract
  • The rate or method of calculation of pay/remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000
  • The number of hours the employee will be expected to work per normal day and per week
  • Any applicable employment regulation order or sectoral employment order

You can download a template statement from the Workplace Relations Commission website here.