John Clarke was dismissed from his job in May 2019 but his employer was ordered by the Circuit Court to maintain his pay and benefits until the outcome of his WRC case. (That case has still not been determined as I write this in September 2020).
Mr Clarke had sought the protection of the Protected Disclosures Act 2014 from the Circuit Court as he claimed he had been dismissed for having made protected disclosures in the workplace.
He had commenced employment as a group financial controller with CGI Food Services Limited in 2017. Difficulties arose for him when he raised issues which he claims were protected disclosures and ultimately led to his dismissal. The issues were to do with financial details, payments, a false invoice, unvouched expenses, Revenue issues, to name a few.
He fell out of favour with the employer and was berated and criticised and ultimately dismissed for allegedly poor performance. His contention was that this was simply a cover for terminating him for having made protected disclosures and he was entitled to the protection against penalisation contained in the Protected Disclosures act 2014.
He went to the Circuit Court and was successful in arguing that he was dismissed for having made protected disclosure and he was entitled to an interim relief order which maintained his pay and benefits until the WRC hearing had been determined. He succeeded in obtaining such an order.
The WRC hearing commenced in September 2019 and was adjourned a number of times, including on account of the Covid 19 emergency. The Employer ultimately appealed the Circuit Court decision to the High Court.
Protected disclosures?
The first thing the High Court had to decide was whether the matters Clarke complained about were protected disclosures or merely grievances. The issues he had raised concerned financial irregularities and food safety concerning the storage of food (pizza). The financial issues he raised were concerns about vat and Revenue obligations.
The employer claimed these issues were not protected disclosures and were not “relevant wrongdoing” as set out in the Protected Disclosures Act 2014. The employer also contended that the employee had only raised the protected disclosures argument after his dismissal.
The High Court held that the issues were, in fact, protected disclosures and there was no need for the employee to use the language of “protected disclosure” or to invoke the Protected Disclosures act 2014 in the workplace in the first instance.
The Court also held that without making any final finding on the substantive case of the employee that “it is likely that there are substantial grounds for contending that the dismissal results wholly or mainly from the employee having made a protected disclosure”.
Mr Justice Richard Humphreys dismissed the employer’s appeal and affirmed the order of the Circuit Court and the employer is obliged to continue the employee’s contract of employment for the purpose of pay and benefits until the case is decided by the WRC.
Clearly, the Covid 19 pandemic may prolong even further the ultimate determination of this case which will prove to be a costly affair for the employer the longer it goes on as he will be obliged to continue Mr Clarke’s pay and benefits.
Perhaps you have a sneaking suspicion that it was not really a genuine redundancy situation and the employer simply took the opportunity presented by the Covid 19 pandemic to get rid of you.
Or maybe the redundancy was genuine but you feel you were unfairly selected, that someone else should have been chosen and it would have made much more sense.
I have met many employees who have found, or find, themselves in this type of situation. The question arises: what can you do about it?
Unfair dismissal
The main cause of action will be a case for unfair dismissal on the grounds that
It is a sham redundancy, not a genuine one or
You have been unfairly selected.
If you can prove that your case falls into one of these categories you may well win your case for unfair dismissal. If you do the remedies open to you, at the discretion of the adjudication officer at the Workplace Relations Commission, will be
Financial compensation
Reinstatement (in your old job)
Reengagement (in a new position in the company)
There is a problem, however. If you have been unfairly dismissed and you prove it was not a genuine redundancy it is almost certain that whatever redundancy payment will have to be offset against your financial loss, as calculated by the provisions of the Unfair Dismissals Act 1977.
This could mean, in effect, that you would be no better off by bringing such a claim. This will depend, however, on two things:
How long you were unemployed after the termination
How much of a redundancy payment you received
Examples
Let’s assume you have been paid €15,000 redundancy and you succeeded getting a new job within a month of being terminated from the old one. Your financial loss in this situation will be only 1 month’s salary, therefore if you are successful with an unfair dismissal claim you will be looking at financial compensation of 1 month’s salary. Factor in legal fees for preparation for and representation at the WRC hearing and you may decide you are better off putting the whole thing behind you and moving on.
On the other hand you may have been paid only statutory redundancy, let’s say €10,000, and you have been unemployed for 9 months after the termination. In this case you will be better off if you are successful with an unfair dismissal claim and remember you could also win reinstatement or reengagement.
Other considerations which arise will be whether you believe the relationship between you and the old employer is totally ruptured and damaged, or would it be convenient for you to get your old job back, or an alternative position.
A further factor needs to be considered: did you sign a settlement/termination agreement? Because if you did, and you had the benefit of legal advice, you may have waived your rights to bring any claims against your former employer.
Conclusion
You will note that you need to give your situation serious thought and consideration and weigh up all the options, taking into account the issues raised above. You may have additional considerations and factor to consider as each case is unique.
The Temporary Wage Subsidy Scheme (TWSS) introduced by the government on 26th March 2020 is now coming to an end on 31st of August 2020. It will be replaced by the Employment Wage Subsidy Scheme (EWSS) which will run until 31st March 2021.
Under the EWSS employers will be able to seek wage subsidies for a broader range of workers, including seasonal and new hires. Under the new system (EWSS) the maximum subsidy available per worker will fall from €410 to €203 per week.
Additionally, instead of being a percentage of the employee’s net pay, there will be two fixed rates of pay for workers: €151.50 or €203.
Minimum and maximum earning requirements have also been set in place. A person who earns between €151.50 and €1,462 per week will be eligible for EWSS.
Employee gross wages
Subsidy
Less than €151.50
Nil
From € 151.50 to € 202.99
€151.50
From € 203 to € 1,462
€203
More than € 1,462
Nil
Initially, under TWSS (the old scheme) to be a qualifying business, the business had to forecast a loss of at least 25% of their turnover, under EWSS this loss of turnover required has been increased to 30%.
Employers will also have to hold a valid Tax Clearance Certificate showing the tax affairs of the business are in order.
Under the TWSS the employer receives the subsidy sum within 48 hours of lodging payroll information with the Revenue. Under EWSS, the timeframe for receiving the same sum could be as long as 6 weeks.
There is no subsidy for workers earning below that €151.50.
The biggest issue for employers will be obtaining a Tax Clearance Certificate if they do not already have one because the employer will be ineligible for the scheme without a tax clearance certificate.
There are 2 elements to the EWSS:
a flat rate subsidy to qualifying employers and
a reduced rate of employer PRSI of 0.5% on wages paid which are eligible for the subsidy payment.
Employer eligibility
The two main criteria for eligibility are that the employer has a tax clearance certificate and their business is expected to experience a 30% drop in turnover between 1st July 2020 and 31st December 2020 and the cause of the drop is the effects of Covid 19.
Childcare businesses registered in accordance with section 58 C of the Child Care Act 1991 do not have to show the turnover drop.
Employers must carry out a monthly review to check they are still eligible for the scheme.
Change in employment contracts/terms and conditions
The EWSS has no impact on the existing terms and conditions of the employee’s employment. These can only be changed with the consent of the employee.
PAYE and PRSI
The normal operation of the paye and prsi system will be restored with Revenue applying the reduced rate of 0.5% employer prsi. This will occasion the calculation of a prsi credit due to the employer creating a reduction in the monthly tax balance due.
The High Court recently issued an interesting decision about the employer’s obligation to make reasonable accommodation for an employee who is unable to carry out the full range of duties. The case is Robert Cunningham and Irish Prison Service and The Labour Court [2020] IEHC 282.
Background
Robert Cunningham is a prison officer and had brought a claim under the Employment Equality Act 1998 (as amended) against the Irish Prison Service for failing to make reasonable accommodation for him to continue in his employment.
Mr Cunningham has suffered a number of back injuries over the years and was medically incapable of carrying out the control and restraint duties required of a prison officer. He is 40 years of age and has an exemplary record in the prison service. The injuries he suffered caused a bad back injury leading to a number of back surgeries, thereby preventing him from being able to carry out control and restraint duties.
He was offered a lower rank job with a significant drop in wages or a retirement on ill health grounds.
The Irish Prison Service was unable to provide reasonable accommodation for him and relied on section 37.3 of the Employment Equality act 1998 which states:
3) It is an occupational requirement for employment in the Garda S íochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda S íochána or the service concerned may be preserved.
The Irish Prison Service argued that this section provided an exemption to them from the obligations imposed under section 16 of the Act:
3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.
( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer ’ s business, and
(iii) the possibility of obtaining public funding or other assistance. ]
Mr Cunningham brought a case to the Workplace Relations Commission and won but the employer appealed the decision to the Labour Court. The Labour Court decided, without hearing evidence, that the Irish Prison Service had an exemption, pursuant to section 37.3 referred to above, from providing reasonable accommodation if Mr Cunningham was unable to perform the full range of duties, including control and restraint.
Mr Cunningham appealed to the High Court on a point of law-that is, that the Labour Court had misinterpreted the Employment Equality Act.
The High Court
In the High Court Mr Cunningham’s counsel, Ms Kimber SC, argued that he was entitled to have reasonable accommodation under the provisions of the act by being given duties which did not involve prisoner contact. There were many such posts and examples given of other employees being accommodated in the Control Room or on the main gate, and so forth.
The employer’s argument, put forward by Mr Ward SC, was the prison service was exempt from the obligation to provide reasonable accommodation pursuant to section 37(3) of the Employment Equality Act 1998 (as amended).
The Labour Court had not heard any evidence from workers who were accommodated with restricted duties on a long term basis and held that section 37.3 provided a complete exemption to the Irish Prison Service due to Mr Cunningham was not capable of performing control and restraint duties.
Ms Kimber SC contended that the Employment Equality act 1998 was enacted to implement the Framework Directive for equal treatment in employment and the Employment Equality act should be interpreted in that context and should be interpreted by the High Court so as to give effect to the terms and objectives of the Directive.
Mr Ward SC contended that the act should be interpreted by giving words their ordinary and natural meaning so as to give effect to the Oireachtais and the wording of section 37.3 was clear and unambiguous.
High Court Decision
The High Court referred to the Nano Nagle case as one which set out a shift in the way disability is to be viewed in the workplace in European and Irish law and the right of a person with a disability to dignity in the workplace.
The correct interpretation of section 37.3 was not that the employer-the Irish Prison Service-could simply self-certify that the employee was incapable of performing the range of functions required in the job and they were, as a consequence, relieved of any duty to provide reasonable accommodation for him.
Everything will depend on the circumstances of the case and in larger organisations there may not be a single characteristic function which is essential to be performed by all employees. By way of an example the Court referred to a Garda Siochana who may be in a wheelchair but could do a desk based job or be engaged in a department like the forensic document section or cybercrime.
The Court held that the Irish Prison Service was an organisation of magnitude and which had varied posts of work available. Whilst the employer does not have to create a job for an employee, and they do not have to provide measures that are unduly burdensome, they do need to look at the operational capacity of the organisation and see if they can retain a role which did not involve control and restraint for officers who may need temporary access to restricted duties.
The High Court held that the Labour Court was in error in failing to hear evidence and make findings of fact in the case and made a point of law that the interpretation of a particular section in a statute does not exist on its own, it must be applied to the facts in order to reach a determination in a particular case.
It is the application of the decision reached by a court on a point of law to the facts as found by the court which gives the ultimate decision.
The Labour Court did not do this in this case as it heard no evidence and the High Court held that all factors should have been considered in the particular case before it.
The High Court held that the exemption contended for by the Irish Prison Service did not go as far as contended and the requirements of the Directive mandate that the employee be given reasonable accommodation to be permitted to continue in the employment.
The correct interpretation of section 37.3 was not that the employer was exempt from the obligation to make reasonable accommodation for the person if it is not unduly burdensome for them to do so.
The High Court sent the case back to the Labour Court for a consideration of all the factual evidence in the case and held:
“everything will turn on the facts of a particular case and the size and nature of the emergency service concerned. Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them..”
Certain payments made to you on the termination of your employment may be exempt from tax. Let’s say you have been made redundant and you are being offered a termination/severance package and agreement.
This type of agreement will typically include 4 types of payment:
Statutory redundancy payments
Ex gratia severance payments from an employer
Notice pay
Holiday pay
Notice pay and holiday pay is fully taxable in the normal way.
i) Statutory Redundancy payments
Statutory redundancy payments are tax free.
Statutory redundancy is calculated as follows
Two weeks’ pay for each year of reckonable service between ages of 16 and 66, plus one extra week, subject to a maximum weekly payment of €600.
ii) Ex gratia payments from employers
There is a basic tax free exemption on ex-gratia payments received from the employer.
The basic exemption starts at €10,160 + €765 for each completed year of service.
The basic exemption may be increased by €10,000 IF
(a) the employee has not in the previous ten years claim any benefits under section 201 Tax Consolidation Act 1997 and
(b) the employee is not a member of a occupational pension scheme, or if a member the employee has irrevocably given up the right to receive a lump sum from the scheme.
Standard Capital Superannuation Benefit (SCSB)
This is an additional benefit an employee may be entitled to and benefits long serving employees with high earnings. It is calculated using the formula
(A x B) /15 – C
Where
A = 12 months average of the remuneration from the last three years
B = Number of completed years of service
C=Any tax free lump sum received or receivable under the employer pension scheme.
Takeaway
If you are receiving a significant sum of money by way of a termination payment arising from the termination of your employment I would strongly recommend that you obtain taxation advice. Failure to do so could lead to an unpleasant surprise and a tax liability.
