Author: Terry Gorry

Categories
Working Time/Rest Periods

Important High Court Decision in Sunday Premium Pay Case

Is it enough for an employer to provide in the contract of employment a provision to the effect that the employee’s rate of pay has been calculated to include a premium for working on Sunday?

Does the employer need to provide evidence of the amount or premium if there is a claim to the WRC or Labour Court?

The High Court has held that when it comes to the premium that is to be paid for working on Sunday, in accordance with section 14 of the Organisation of Working Time Act 1997, it is sufficient for the employer to provide an express term in the contract of employment that the requirement to work on Sunday has been taken into account in calculating the rate of employee’s pay.

In a 7th of October 2019 decision of Mr. Justice Binchy in Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova the High Court held that the Rights Commissioner at first instance, and the Labour Court on appeal, had made a mistake in finding for the employees.

Background

The employees had contracts of employment which contained a provision that the hourly rate of pay..

“This includes your Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three). Payment will be made weekly with one week in arrears and will be paid directly into your bank account […]”

The employees had successfully argued at the Rights Commissioner service that as the contract failed to identify any element of the employees’ pay as being a premium for working on Sunday it followed that they were not paid the premium as provided for in the Organisation of Working Time act 1997.

The employer relied on the provision in the contract stating that the rate of pay took into account Sunday working and there was no obligation to identify how much is referable to working on Sunday.

The employees won their case at the Rights Commissioner service and the case was appealed to the Labour Court. The Labour Court agreed with the Rights Commissioner and found

“[…] the respondent failed to tender any evidence to the court in relation to what, if any, element of the complainant’s hourly rate of pay was specifically referable to her contractual obligation to work on Sundays”

In fact, the employer’s legal team argued that, inter alia, the Labour Court did not have jurisdiction to hear the claim as the employer had taken into account the need to work on Sunday in arriving at the rate of pay as required by section 14(1):

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—

Decision

Mr. Justice Binchy found that the Labour Court was incorrect in finding that no evidence had been adduced to the Labour Court about the Sunday premium by reason of the fact that the contract of employment was adduced in evidence and it provided, in an express provision, that the requirement to work on Sunday was taken into account and held that the “language used in the contracts is plain English and could not be more clear.”

He went on to find that the only evidence given at either hearing was the contract of employment and that the requirement imposed by the Labour Court that the employer must adduce further evidence to show a Sunday premium was paid was incorrect in law.

The fact that there is a provision in a contract is not conclusive, the High Court held, but it is up to the employees to adduce evidence to shift the onus of proof in the matter to the employer. If the employee fails to do so he leaves the contract unchallenged and the employer is under no obligation to go into evidence on the issue.

But it was this very fact, that the employer had failed to go into evidence, that led to the Labour Court finding against him.

Finally, the Labour Court arrived at a decision on a matter of law because it had decided that a “clear statement in the contract of employment signed by both parties could not be relied upon, and instead must be proven in a particular way.” This was a mistake and the Labour Court was not entitled to do this.

Moreover, it also fell into error in deciding that the Organisation of Working Time act  1997 imposed an obligation on an employer to draw up a contract in a particular way-that is, explain the breakdown of wages referable to working on Sunday, or to adduce evidence at a hearing of a complaint  to prove a statement agreed to by an employee in the contract of employment.

These were findings of law, not fact, and the Labour Court was not entitled to make such findings.

Read the full decision of the High Court here.

Categories
Data Protection Employment Claims

The Use of Private Investigators By Employers-Caution Needed

Have you been tempted to engage the services of a private investigator to carry out surveillance on one of your employees?

Perhaps you are trying to gather evidence of breach of a restrictive covenant in the contract of employment? 

Or maybe you want to ascertain if an employee is working somewhere else or carrying on a business in breach of the contract of employment?

Restrictive covenants

Many contracts of employment contain restrictive covenants. The restrictive covenants aim to restrict the employee from doing certain things after she leaves the employment, typically 

  1. Restricting the employee from working in the industry for a certain period of time in a specified geographical area
  2. Restricting the employee from poaching staff from the old employer
  3. Restricting the employee from approaching old customers/clients with a view to moving them to the new employer, or the employee’s new business.

Whether the employer takes steps to enforce the restrictive covenant will depend on the circumstances, including the importance of the departing employee to the business and the potential damage he can cause if the covenants are not enforced.

The employer will have to weigh up the potential costs and benefits from attempting to take legal proceedings to enforce the post termination restrictions. Before commencing legal proceedings, however, the employer will need to be satisfied that a covenant is, or is in danger of, being breached.

This involves gathering evidence and the steps that the employer is entitled to take to gather the evidence.

Credit Suisse bank covert surveillance

The Credit Suisse bank was forced to apologise to a former employee, the head of wealth management, when it transpired that a covert surveillance operation was carried out due to the fear of the former employee poaching banking colleagues and clients. An independent inquiry was carried out to investigate the matter. This led to the resignation of the bank’s chief operation officer, who had gone on a solo run, and the finding of no evidence that the former employee was in breach of any restrictive covenant.

Private investigators in employment disputes

Private investigators would be frequently used in personal injury claims but not in restrictive covenant employment contract cases.

The question arises, however, as to the boundaries, having regard to privacy and data protection issues, of such operations.

In Ireland, in Sweeney v Ballinteer Community school, the principal of the school was criticised by the High Court for having a private investigator follow a teacher for four days in a dispute about bullying and harassment.

In fact, the High Court held that this surveillance of Ms Sweeney was itself ‘harassment of the plaintiff’ and could easily have tipped her into mental illness if she became aware, especially in a case which saw Mr Sweeney bring legal proceedings against the school on the grounds of bullying and harassment.

The operator of the Luas transport service, Transdev, used a private investigator to follow one of its drivers who was moonlighting as a taxi driver on his wife’s licence. The WRC decided that the decision to dismiss him for gross misconduct was reasonable.

The data protection commissioner has indicated that there must be a strong reason for surveillance before engaging the services of a private investigator.

Takeaway

If you are an employer and you believe a former employee is in breach of a restrictive covenant and you want to engage the services of a private investigator, tread carefully. You may have to justify the use of the investigator later on in any legal proceedings and you will need a sound justification having regard to the privacy and data protection rights of the employee.

Personal injury cases, however, have frequently featured the use of investigators engaged by the insurance company defending the claim and this is likely to continue.

Categories
Employment Claims

The Cost Effectiveness of Bringing Certain WRC Claims

Labour Court Appeals

I took a quick look through the latest decisions from the WRC this morning. There is a facility on the WorkplaceRelations.ie website which allows you to see the latest decisions and the week in question is from the 23rd September 2019 to 29th September 2019.

I only glanced at about 5 decisions but of those 5 two grabbed my attention.

Claim for €70

The first one was ADJ-00021926 which was a claim by a maintenance operative against a property maintenance company. This involved a claim under the Industrial Relations act 1969 for outstanding expenses of €70 due to the worker.

The employer did not attend the hearing and the WRC recommended that the employee be paid the €70 and a further €350 for the inconvenience of having to claim to the WRC.

The problem for the employee, however, is that as his claim was brought under the Industrial Relations Act 1969 the recommendation is not legally binding or enforceable.

The second case that took my attention was a claim for redundancy by a kitchen fitter against a kitchen provider (ADJ-00016292). The employee was successful in the case which was held over 2 days and was awarded €619.

Cost effectiveness

What struck me from both of these cases was the question of cost effectiveness for all parties: the employee, the employer, and the WRC.

In the first case involving the property maintenance company the claim at the outset was for €70 and it was brought under an act that can only result in an unenforceable recommendation; this may or may not be why the respondent did not show up.

The second case ended up, after 2 days, with an award of €619 but when you consider the cost incurred by employee, employer, and WRC over a 2 day hearing you would have to question the cost effectiveness of claims like these.

Perhaps if a claim was below a certain amount it could be dealt with without the need for a hearing; perhaps written submissions by both parties (they are supposed to send these into the WRC in any event) and a desk based decision by the Adjudicator.

I am not questioning the right of any complainant to submit a claim, regardless of the monetary value, and recognise that an employee may wish to bring a claim on a point of principle and to show that he/she was treated unfairly and/or unlawfully by the employer.

But a more cost effective method might be worth considering for claims below a certain monetary value which might be to the benefit of all parties.

Categories
Employment Claims

Is the WRC (Workplace Relations Commission) Biased Towards Employers?

Many visitors to my Facebook page about employment rights in Ireland have a dim view of the WRC (Workplace Relations Commission). Some of these disappointed complainants believe the WRC is useless and in favour of employers.

On this post, for example, you will see comments such as

‘WRC is crap of employers’ weapons’, 

‘A complete shower of pricks…

Told me i was off my head go home.’

‘The wrc weren’t much use to tesco staff.’

‘Biggest mistake anyone can make is to go to WRC – look up decisions and you will see patterns’

‘Kangaroo court at best’

‘The WRC are wortless’

‘They weren’t much use to me either absolutely wasted my time’

Is that the case? Can you, as an employee complainant, get a fair hearing and have a reasonable chance of success? Are the dice loaded against you?

Conspiracy theories can be hard to dispel and unsuccessful claimants to the WRC are understandably disappointed. They blame the system, or the WRC, or the government, or the employer, or the other side’s representative.

They often overlook their own case, however, and the way it was presented. And the facts underlying that case and whether they proved those facts.

Then there is the requirement to prove a breach of the law in respect of the claimant’s employment rights.

Sometimes, but rarely, cases are straightforward. Slam dunks.But they are rare enough, to be frank.

Most times, however, there is at least three sides to the story-the claimant’s, the employer’s, and the truth.

What these disappointed commenters fail to understand is their case was probably unsuccessful because the facts of their case meant they were unable to prove a breach of the law by their employer.

Their case did not fail because the WRC favours employers, it didn’t fail because of some conspiracy, it didn’t fail because the WRC is biased; it almost certainly failed because the complainant failed to

  1. Prove the facts
  2. Prove the law 

Essentially the facts of the case, or the facts that were proved, did not support the contention that the claim they were pursuing was proven.

It is the easiest thing in the world to blame the referee if you lose a match. It is human nature to believe the referee stitched you up and favoured the other team.

It is far more difficult to accept that you were not good enough on the day and the other team were deserving winners.

Similarly, it is easier to blame the WRC generally or the Adjudication Officer or some other target for the failure to prove the claim presented.

But that is not fair on the WRC or the Adjudication Officer who I have always found to be fair, professional, and knowledgeable about employment law.

Last week I wrote about a sexual harassment case at the WRC which attracted an award of €30,000-18 months salary- to the employee and a case of indirect harassment which saw an award of 12 months salary-€38,000- for the employee who lost her job because she was unable to accept moving from part time work to full time.

Conclusion

The truth of the matter about the WRC’s effectiveness for employees is inconvenient and less sensational than the allegation that there is a conspiracy to do down the employee and make sure her claim for breach of her employment right fails. 

The truth is if you present a decent case of breach of the law and prove the facts of your case you will win. And if you fail to do so your claim will fail.

This is the way it should be. You must prove the facts, and you must prove breach of an employment right. 

It’s as simple as that. 

And if you fail, don’t blame the ref. But my experience is that you will get a fair hearing. 

Here are the 2 recent cases to which I refer above and where employees were awarded €30,000 and €38,000:

  1. Indirect discrimination
  2. Sexual harassment
Categories
Equality and Discrimination

Catering Assistant Awarded €30,000 for Sexual Harassment

The WRC have awarded €30,000 to our client arising from a claim of sexual harassment in the workplace.

The claim was brought under the Employment Equality Act 1998 and in a comprehensive 20 page decision the WRC Adjudicator awarded her €30,000, not subject to any statutory deductions, which was the equivalent of 18 months’ wages.

The hearing was held over two days and evidence given by both complainant and employer was well tested.

Background

The complainant alleged that she had been sexually harassed in the workplace over a period of time which culminated in an incident in which she alleged she had been pinched in the bottom.

The employer, when advised of the allegation, carried out an investigation and made certain findings and recommendations.

We argued, however, that the findings of the investigation were irrational and perverse and flew in the face of the facts and evidence of other employees.

We also argued that the response of the employer was inadequate and an offer to transfer the complainant was unfair as she had done nothing wrong.

The law surrounding sexual harassment

Several important legal aspects of this case are worth considering.

The first has to do with the burden of proof and the obligation on the complainant, in the first instance, to establish facts from which a reasonable inference of discrimination could be drawn.

Once this prima facie hurdle has been cleared by the complainant the burden of proof shifts to the employer; but it must be cleared in the first instance in all cases alleging discrimination.

The employer has a defence in section 14 A of the Employment Equality Act:

it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

( a ) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

( b ) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

Was this defence open to the employer in this instance?

We argued that this defence was not open to the employer by reason of his failure to take reasonable steps to prevent the harassment or reverse its effects.

The WRC adjudicator agreed with our arguments insofar as she found that the response of the employer was inadequate and ‘avoided the responsibility to take the right action and deal with Patrick’s behaviour’.

She also agreed that the findings of the investigation carried out to be ‘contrived and evasive’ and the appointment of an external investigator may have led to a more ‘balanced and reasonable’ outcome.

She also agreed that the evidence of the complainant was truthful and credible and the evidence of the manager ‘doesn’t stand up’;  the decision to impose the ‘beyond a reasonable doubt’ standard of proof was ‘unfair’ and what was required was the imposition of the civil standard of proof of ‘on the balance of probability’.

To be clear, the standard of proof being set at ‘beyond a reasonable doubt’ is the appropriate standard in a criminal case, but not in a civil case or employment dispute/complaint investigation.

Interestingly, the WRC adjudicator also made the point that ‘sexual harassment is as much about power as about sex and the harasser’s intention was to humiliate the complainant and retrieve for himself some of the power she possessed’.

Conclusion

For employees it is important to know that sexual harassment in the workplace is taken extremely seriously by the Workplace Relations Commission. You must discharge the initial burden of proof to prove facts from which a reasonable inference of discrimination can be drawn. If you can do this the burden shifts to the employer.

The employer must note that having a policy in place which deals with sexual harassment and/or discrimination is not enough; the employer must go further and ensure that the policy and procedure is applied rigorously and fairly and reasonable responses happen if a finding of discrimination is arrived at.

Having a policy/procedure and going through a box ticking exercise will not be sufficient if the findings are irrational or the response is inadequate.

You can read the full decision of the Workplace Relations Commission here.

Learn more about sexual harassment here and the employer’s defence in a discrimination case here.