The Intermeddling Well Intentioned Friend/Partner-Don’t Become a Victim

meddling friend

One of the most annoying, frustrating individuals I frequently encounter is the well meaning, well intentioned supporter/friend/partner/spouse.

He miraculously appears

  1. To know the law inside out
  2. To know all the facts and circumstances of the victim’s unfortunate experience in the workplace.

He, and it’s nearly always a he (sorry lads), insists on answering all the questions I put to the aggrieved, distressed employee who has come to me with a problem arising from the workplace.

He means well, sure, but how he can tell me what happened in the workplace on various dates when he was in a different parish is a source of mystery and puzzlement to me. And when he has never worked as much as 5 minutes in that workplace.

How he can tell me, with such vivid accuracy, what the colleague or rude customer or ignorant manager/supervisor said to the ‘victim’-the employee I am trying to assist and advise-baffles me.

Of course, the truth is he doesn’t know what happened or what was said; all he knows is what he has been told by the lady who has come to me for advice.

So, why not let her speak?

Why not let her tell me what happened?

Why not let her tell me what is on her mind?

Why not let her give me first hand evidence by her direct account rather than his second-hand coloured version of hearsay?

Some lads are just irresistible.

No matter how much you try to ignore them, no matter how much you avoid eye contact for fear of encouraging them, no matter how reasonable you act in putting a few questions to the upset employee it proves to be an exercise in futility. They are incorrigible.

And then when it comes to the law-my goodness-they have Googled and researched to their heart’s content for weeks on end and have finally come across one or two cases that have a passing relationship to their partner’s case.

And they have noted the amount of compensation awarded and cannot see why their partner’s case is not worth at least this much along with a significant premium.

The fact of the matter, however, is that these lads know as much about the law as I know about root canal treatment.

Or treatments for depression.

Or genetics or the value of closely studying yeasts.

The best thing they could do would be to give support-real support-to their partner/friend/spouse. Not to interfere or purport to speak for them or overbear their mind to the point where the victim is sitting there without a voice or an opinion and getting increasingly unsure of what happened that led to the problem in the first instance.

But just let them talk, let them tell their story.

Don’t be one of these lads.

You’re in the way.

Sorry. I know you mean well, and you have your friend’s/partner’s interest at heart.

But you would be better off letting your partner/spouse tell her story in her words.

Because apart altogether from the benefit from a legal perspective it’s also therapeutic for the person you love.

If you are the employee, you need to be aware of this phenomenon and avoid it like the plague. It will hinder, not help, you.

It may involve some ‘tough love’, some honesty.

But sometimes ‘tough love’ is just what we need, and what’s right.

3 Mistakes I Have Observed at the WRC/Labour Court in the Last 10 Months

irish solicitor

I have represented a good deal of clients in the Workplace Relations Commission and Labour Court over the last 10/12 months. In that time period I have observed what I consider to be 3 significant mistakes at those hearings.

You might learn something from them; I know I have.

Let’s take a look, shall we?

1. Asking too many questions in cross-examination

I acted for a client-an employee-in the WRC who had a great story to tell.

I took him through direct evidence and this was his opportunity to tell his story. My job was to ensure he got to tell all his story in the most sympathetic light to his case.

I did an average job but did leave out two very important questions. These 2 questions were vital pieces of evidence and left a couple of gaps in my client’s evidence.

I need not have worried for too long, however, because the HR representative for the other side (the employer) did my job for me when he was cross examining. He asked the questions that I had forgotten and my client took the opportunity with both hands and plugged the holes in his original evidence.

It is arguable that this was even better than if I had asked the questions because the fact that the answers came out in cross examination may have given the evidence even more credibility.

The big mistake? The HR representative for the other side asking too many questions.

Sometimes the best thing you can do in cross examination is shut up and sit the hell down.

Don’t pay any heed to Rumpole of the Bailey setting a fiendishly clever trap for a witness; don’t mind the cross examination scenes you see in TV crime dramas or Top Gun when Tommy Lee Jones cross examines Tom Cruise.

These pieces of storytelling or theatre are just that and should be recognised as such.

The lesson? Don’t ask questions in cross examination for the sake of hearing your own voice; sometimes the best thing you can do is shut up.

2. A stray document

Another mistake I encountered was being given a bunch of documents by the representative for the other side and finding a document-a letter-which was of immense value to my client’s case and which we did not know existed.

And even if we knew it existed we would not have had any right to it as the other side could have claimed it was entitled to legal privilege.

But here it was amongst a huge bunch of the usual stuff like a diamond in a pigsty.

The value of the document was that it showed the other side-the employer-was told something by a professional advisor, did not act on it and this failure to act ultimately led to my client’s job loss.

This went to the heart of our claim for unfair dismissal.

The mistake? We should never have know of the existence of this document, never mind come into possession.

3. Failing to settle a case

This case involved a number of employment related claims at the WRC (Workplace Relations Commission). But there was also a personal injury claim in being.

The HR representative for the other side (the employer) recognised that our case was a very strong one and the signals from the Adjudicator was that they would be well advised to talk to us with a view to settling. We were well ahead.

We took a break and negotiated for a little bit and there was not a huge difference between us in the end about the money stuff but we did not agree.

The mistake, in my view, was the the HR representative failed to recognised that if the case was settled it would have been on the basis that all claims arising from the employment were settled.

This would have included the Personal Injury claim. This is very significant.

This would have been a great piece of work for his client, the employer, and would have given him a great deal of comfort and certainty. Personal injury claims, if they go against you, can be expensive.

But the HR person seemed unable to recognised this value, or did not have the competence or confidence to do so.

A relatively small amount of extra money would have settled the whole shooting match-that is, all claims arising from the employment, including the personal injury claim.

Instead the hearing went ahead and we won a decent award. And the Personal Injury claim is still in being and will be pursued.

Conclusion

We all make mistakes but the best thing we can do is learn from them, file away the lessons, and move on with confidence that we will not make the same mistakes again.

Hopefully I will avoid these 3 mistakes that I came across in the last 10/12 months.

Technical Breaches of the Law and the De Minimis Rule-the Labour Court’s Approach

the labour court

What happens if there is a technical breach of the law by an employer but the employee has not suffered any prejudice or detriment?

Do you know what the “de minimis rule” is? It might be a good idea to be aware of it.

Let me explain.

An employer must give an employee a written statement of certain terms and conditions of employment within 2 months of starting the employment. This is normally referred to as a written contract.

The relevant legislation-the Terms of Employment (Information) act 1994-sets out the various things that need to be included in this statement. There are some further matters that must be included pursuant to the Terms of Employment (Additional Information) Order 1998 (SI 49/1998).

Between the 1994 Act and the statutory instrument from 1998 there is approximately 20 matters that must be covered.

What happens however if there is a technical breach of the obligation? By this I mean an employer does indeed give a written statement but omits a small number of things that he should have included, or there is some other technical breach of the obligation.

What happens if a minor, trivial, technical breach does not lead to any prejudice or disadvantage to the employee?

A recent Labour Court case dealt with such a claim in Component Distributors (CD Ireland) Ltd and Brigid (Beatrice) Burns.

The Complainant, Ms Burns, had brought a claim to the Workplace Relations Commission alleging breach of the Terms of Employment (Information) act 1994. The breaches were minor and the Adjudicator awarded her €200.

She appealed this decision to the Labour Court.

The alleged breaches of the employer’s obligations were

1. The full name of the employer was not set out in the contract insofar as the contract omitted “CD” and “(Ireland)”

2. The statement did not set out the employee’s breaks

3. The employer’s annual leave year did not run in tandem with the leave year referred to in the Organisation of Working Time Act 1997

The Labour Court and the De Minimis Rule

The Labour Court referred to a case called Patrick Hall v Irish Water TED161 in which it set out its approach to be adopted where a technical breach of this Act which had no practical consequences occurred. It then adopted and applied the reasoning set out in that case and it is worth taking a look at here.

In Patrick Hall v Irish Water TED161 the Labour Court commented:

As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs associated with providing the Complainant with a hearing of these complaints at first instance and it is now obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringements of which he complains had not occurred.

Moreover, the letter of offer furnished to the Complainant dated 25th July 2014 invited him to contact a named person if he wished to discuss or seek clarification on any of the terms proffered. The Complainant signed the statement without demur and returned it to the Respondent. Neither then or at any subsequent time did he request further or better particulars on any matter pertaining to his employment. The Court has no doubt that had he sought further information on any matter pertaining to his employment, including the matters which form the subject of his present complaints, it would have been provided by the Respondent.

In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. That is particularly so in circumstances in which the matters now complained of could easily have been rectified by a simple request to the Respondent to provide any further information that the Complainant considered necessary.

De Minimis rule

It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle is encapsulated in the Latin maxim de minimis non curat lex (the law does not concern itself with trifles). The classic statement of where this principle should be applied is contained in the judgment of Henchy J. in the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69. Henchy J articulated a generally applicable test in the following terms: –

“In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

The Labour Court went further:

The Court is satisfied that, in the circumstances of this case, any deviations that may have occurred from what the strict letter of s. 3 of the Act, or from what the statutory instrument at issue prescribes, are so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule. There can be no doubt that the Respondent provided the Complainant with all the information that he required in relation to the essential elements of the terms and conditions attaching to his particular employment. What is complained of is a failure to provide information on matters that had no practical significance in the context of the employment that he was offered and accepted.

In this case, Component Distributors (CD Ireland) Ltd and Brigid (Beatrice) Burns, the Labour Court determined as follows:

Determination

The within appeal is upheld in part as set out above. In its decision in Irish Water the Court held that where mere technical breaches of section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”. The Court follows that reasoning in its approach to this claim.

The Court determines that the amount of compensation which is just and equitable in all the circumstances is nil. The Recommendation of the Adjudication Officer is varied accordingly.

You will note that even though the Labour Court agreed that there were breaches of the relevant act those breaches were so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule.

And the Labour Court held that the technical breaches did not justify any compensation and reduced the employee’s award from €200 to nil.

Adverse Publicity in Employment Cases-Employees, Don’t Make This Mistake

Are you an employee who is thinking about bringing a claim against your employer?

Or maybe you have already brought a claim?

I meet employees frequently and they may come to me before, during, or after a dispute with their employer.

And I see them making many mistakes.

These mistakes can range from bringing the wrong claim to suing the wrong entity as employer to missing the time limit to bring the claim that is misconceived or badly founded from the outset.

One mistake I frequently encounter, though, is the employee’s insistence that the employer will probably settle or roll over by reason of his fear of the ‘adverse publicity’ which the case is bound to generate.

This is a serious mistake because the employee places far too much importance on the threat of ‘bad publicity’.

It is an understandable mistake to make because the employee has a problem that has caused her great anxiety and stress and it has been a large part of her every day life for a considerable amount of time.

And now she is going to finally take action and remedy the wrong done to her.

But the wider world at large has their own individual, personal problems.

They may be big or small ranging from paying the mortgage to buying food or other daily essentials to avoiding the sack to dodging redundancy to the health and welfare of their loved ones to the kids getting on satisfactorily in school to getting good exam results.

And so on.

The list goes on and on. Some people would just call it ‘life’.

These problems may understandably detract from them noticing whether you were treated unlawfully in work or not, and how your claim goes at the WRC.

Quite frankly, other people have their own issues and may not have too much time for your case against your employer. It may not even register on their radar.

Or if it does it is soon forgotten. Tomorrow’s fish and chips wrapper.

For this reason your employer may not have as much to fear on the publicity front as you would expect.

Workplace Relations Commission Claims are Private

Virtually all work related claims have to first be brought to the Workplace Relations Commission (WRC). However, the Workplace Relations Act at section 41 (13) states:

(13) Proceedings under this section before an adjudication officer shall be conducted otherwise than in public.

This means (virtually) all claims are held in private, not public.

Thus, the chances of a tremendous amount of bad publicity arising from the case are minimised.

And to make matters worse from a publicity perspective all decisions of the Workplace Relations Commission when published on their website are anonymised-that is, the identity of the parties is not disclosed and the decisions will have titles like ‘A Worker Versus a Retail Company’ or other nondescript, anonymous titles.

Conclusion

If you bring an employment related claim against your employer you need to weigh up carefully the pros and cons of your case, the potential outcomes, and the cost. These are the factors that you should place most emphasis on when arriving at a decision.

If you lose your case and you appeal to the Labour Court your case will be held ‘in public’ and there may be greater scope to wave the ‘adverse publicity’ stick as a weapon against your employer.

But in looking at your options in a WRC claim my advice is not to overegg the pudding in relation to idea that the employer will be fearful of the tremendous amount of bad publicity surrounding your case.

Because the reality is quite different, apart from some exceptional cases which hit the headlines for obvious reasons unique to that particular case.

The Avoidable Fears and Panic of Small Employers-3 Illustrative Cases

Are you an employer? Have you been stressed and anxious about an employment issue recently?

I have met a number of employers in the last year or so and I had a great deal of sympathy for them.

Let me explain.

It’s very easy for you as an employer to make mistakes in relation to your employment law obligations. One of the obvious reasons for this is the massive body of employment law legislation on the statute books.

If you throw in EU directives and regulations and statutory instruments and recommended workplace policies/procedures and common law and decided cases and the constitution you would be forgiven for not knowing whether you were coming or going when an employee makes allegations or claims against you.

I have recently encountered a number of cases where employers eventually contacted me for advice and had they contacted a solicitor earlier in the day they could have saved themselves a lot of money, anxiety, and stress.

Referring a complaint to the Workplace Relations Commission

The first case involved a small family owned business who were, like most small business owners, flat out doing what they did: making stuff and selling it. Out of the blue they received communication from a trade union on behalf of a long standing employee. The letter set out a number of grievances going back many years and demanded a meeting with the trade union official and their member employee.

The employer, acting in good faith and trying to ‘do the right thing’, agreed and a number of meetings were arranged. These meetings were only moderately successful and involved the employee complaining about many issues, mostly trivial matters frankly, going back many years.

A number of meetings took place involving management of the company and the trade union official and employee. These meetings were time consuming and necessitated the preparation and issuing of minutes and the focusing of valuable management time.

Ultimately the meetings failed to resolve the issues and the employee, with the assistance of the trade union, submitted a claim to the Workplace Relations Commission. Once the employer received the formal letter from the WRC advising of the complaint he immediately panicked and embarked on another round of meetings to try to resolve the issues.

Schedules had to be arranged to facilitate all concerned and ultimately proved to be a waste of time as the employee was still not satisfied.

This whole episode caused great anxiety and stress to the owners of this small business who were anxious from the outset to deal with the problem fairly and in accordance with the law.

What the employer could have done

Firstly, the employer should have obtained professional advice.

If he did he would almost certainly have been told that the issues raised by the employee were grievances or complaints but not breaches of the employee’s rights. Therefore nothing unlawful had been done and there was no cause for panic.

Secondly, the employer could have given the employee a copy of the staff handbook and directed his attention to the grievance procedure in the handbook and told him he was obliged to use the internal grievance procedure to try to ventilate his complaints and have them dealt with.

He would also have been told that the outcome of the grievance procedure could be appealed if the employee was still not happy but ultimately the decision of that appeal was final.

Thirdly, if the employer sought professional advice early he should have been told that the complaint that was submitted to the WRC was a ‘trade dispute’ under the Industrial Relations Act, 1969 and the employer could simply refuse to have it investigated by the WRC by ticking a box on the letter he had received from the WRC.

A lot of stress and anxiety, and expenditure of management resources, would have been avoided, not to mention money saved.

Alleged breach of contract

The second case involved an employee going to a solicitor and making a wide number of allegations about non payment of wages for extra hours allegedly worked, holiday entitlements, public holidays, failure to pay minimum wage, a stress related injury as a consequence of the workplace, and so on.

The threatened legal action contained in the solicitor’s letter on behalf of the employee covered all of the above issues going back many years and demanded a significant payment to ‘settle the matter and all claims arising from the employment’.

It was a real ‘mixum gatherum’ of a demand letter and caused the recipient small business owner a great deal of anxiety and stress. She was an elderly lady who had employed this employee for over thirty years and in addition to the stress and worry at receiving such a letter was also personally disappointed on a human level for she felt she had been very fair with this employee for three decades and was taken aback to see the relationship go downhill.

The small business owner, an elderly lady who has retired from the business which was now run by her son, was incredibly upset by the whole affair.

The employee who was making this claim was at an age when many people would consider retiring and it appeared that this claim may have been one motivated by a desire to get recognition for the years of service, one way or the other.

On the face of it the demand by the employee for an eye watering amount of money was intensely worrying. However, when the issues and claims were stripped down to their essence the situation was not nearly as bad as first appeared.

Firstly, I explained that even though the employee was claiming a stress/psychological injury as a result of the situation in the workplace it is very difficult to successfully succeed with such a claim. I told her son that the employee would need to prove a number of things:

  1. That he had suffered an identifiable psychiatric/psychological injury
  2. That the injury suffered was as a result of the negligence of the employer
  3. That the injury was forseeable and the employer had failed to act as a reasonable employer would.

In other words if the employee had only suffered ‘ordinary stress’ and not a recognised psychiatric injury he would be unlikely to succeed with a personal injury claim. Courts recognised that work is generally a cause of stress. It is not play or entertainment or recreation.

Moreover, bringing a personal injury claim would require expensive medical reports and take quite a while to get to court for hearing and incur significant legal costs with an uncertain outcome thus leaving the employee with a touch decision to make.

In short when the rubber hit the road this ‘stress’ claim may not even get off the ground.

With regard to the other claims concerning holiday pay, public holiday entitlements, or non payment of wages, for example, these would need to be submitted to the WRC (Workplace Relations Commission) within 6 months of the alleged breach of the relevant act.

Thus, the WRC would not be able to deal with the entire value of his claim, assuming there was merit in it, as he would be ‘out of time’ for the bulk of what he was claiming.

This six months rule would not apply if he sued for breach of contract in the Civil courts and he could go back 6 years. However, this would involve legal proceedings for breach of contract in the civil Courts and with the amounts of money involved it may not actually be worth the risk in the end.

Yes, if he won he would almost certainly get his legal costs awarded by the Court, however if the claim was a relatively small one would it be worth it? Would he have the evidence to support all aspects of his claim? Would the employer have a good defence and/or better records? And he would be statute barred in respect of the parts of his claim which were over 6 years old.

Therefore when this particular claim, which commenced with a demand for an eye watering sum of money from the employer, was stripped down to its bare essentials it was not nearly as worrying or stressful for the employer.

Nor an attractive money pot for the employee.

Unfair dismissal

Another employer contacted me in a lather of sweat about an unfair dismissal claim that is coming up. She checked online and discovered that the potential award in an unfair dismissal claim is up to 2 years’ salary.

However, the legislation allows the award of financial loss to a maximum of 2 years’ salary and this level of award is extremely rare.

In her particular case, however, the employee had got a new job within 1 month of the dismissal. Therefore the maximum financial exposure for this claim was 1 month’s salary.

If she calculated how much this would amount to, and the fact that she could put up some sort of defence to the claim when the hearing was held, she would have seen that it was not something that should cause a great deal of anxiety.

And she could always try to settle it in advance of the hearing and avoid the time and cost involved in attending a WRC hearing, especially if she wanted to have legal representation. I would have had to advise her, however, that the cost of defending the case using a solicitor might actually exceed the potential award to the employee.

So, if she wanted to defend it she could consider doing it herself and taking her chances.

Normally I would not recommend this approach but if an employer has a potential exposure for a small award that is not likely to exceed the cost of legal representation then I would advise her to this effect and let her decide.

Conclusion

You will see from these three examples that massive fear and worry can be caused to decent employers if they do not obtain sound professional advice from the outset.

Yes, employers must afford employment rights to their employees and treat them decently, with respect, and lawfully. And if they don’t they will be brought to account. Quite right, too.

But unnecessary fear or stress to employers caused by bad or no advice can be avoided if they seek professional advice early in the day from someone who is familiar with the ins and outs of employment law in Ireland.

Otherwise they will experience worry and anxiety that may be wildly out of proportion to their potential exposure in the claim(s) they are threatened with.






 FREE REPORT FOR EMPLOYERS & HR

9 Simple Money Saving Tips for Irish Employers(and regular employment law tips by email)

Sign Up Below

New Graphic