Categories
Employment Claims

3 frequent mistakes employees make regarding their rights in the workplace

Are you an employee? Have you a problem or issue regarding your employment?

I receive a large number of queries from employees every day of every week and I notice the same sort of mistake being repeatedly made from employees at all levels of an organisation. These mistakes are understandable, but avoidable, and in this piece I will identify 3 such mistakes.

1.Failing to distinguish between a grievance and a breach of a legal entitlement

The rights of employees derive primarily from the constitution (Bunreacht na hÉireann), statutes on the statute book-for example, the Unfair Dismissals Act 1977-and the contract of employment between employer and employee.

If you cannot place your issue firmly and unequivocally into one of these 3 categories then the only route open to you may be to make a grievance internally in accordance with the grievance procedures in the workplace.

This may or may not produce a satisfactory outcome for you and there are other factors to consider, also. For example, your grievance may not be upheld and your relationship with the employer or a colleague may be degraded.

So, it is vitally important that you know whether you have a real remedy open to you or you may choose to fight a different battle on another day.

I have written articles about this topic previously, including this one: Have you a genuine employment case or merely a grievance? Answer these 4 questions

2. Mistaking occupational stress with actionable workplace stress

There is a gulf of difference between ordinary occupational stress and the type of stress that causes a psychiatric/psychological injury and leave the employer open to a negligence claim for damages arising from the injury.

The Courts have repeatedly held that occupational stress is normal and acceptable. Work is not play or recreation and there is bound to be a certain amount of stress involved. This is not enough to allow you bring a claim which might succeed and it can be easy for the employee to misunderstand this.

For example, I have had employees complaining to me about the stress arising from a workplace investigation or disciplinary process. I have to explain that I recognise it is certainly a stressful time but the employer has an obligation to investigate certain matters in the workplace-for example, allegations of bullying or sexual harassment or theft or gross misconduct in the workplace.

Sometimes, it is tempting to point out to an employee, “dude, you are accused of stealing €19,500 worth of stock/sexual harassment/bulling/discrimination/misconduct-of course the employer is going to investigate and, yes, of course it is stressful, but you cannot sue him for the stress”.

But no matter how tempting I have to calmly and patiently explain the difference between ordinary occupational stress and actionable stress that is so great that the employee’s mind has been overwhelmed and has suffered a breakdown.

Read more about  Occupational Stress and Actionable Workplace Stress-the Crucial Difference here.

3. Believing the contract of employment can only be interpreted literally

It is undoubtedly true that the contract of employment can only be changed with the consent of both parties, including the employee. This does not mean, however, that certain work practices cannot be changed by the employer, and such changes may not be contractual changes.

Also, there are certain terms implied into every contract of employment, even though they may not be express terms set out in the contract document itself. Some employees fall into the mistake of interpreting their contract in an extremely literal way and refusing to adapt themselves to changing circumstances in the workplace. This can lead to difficulties and tensions between employer and employee.

Conclusion

The three mistakes I discuss above are easy ones to make, especially for any employee who does not have frequent interaction with the law in general or employment law in particular. This is why it is a good idea to get some professional advice before you embark on a dispute with your employer, and why clarity is such a vital prize to seek.

If you don’t you may be picking a battle that you cannot win, or you might win but lose the war, so to speak.

Categories
Employment Claims The Employment Contract

Employment Termination Agreements-the 1 Big Decision for the Employee

employment termination agreement

Employment termination agreement, severance agreement, compromise agreement, waiver agreement, settlement agreement.

It has many names but it amounts to the same thing.

The employment is being terminated and the employee is being asked to sign some type of agreement and enter into another contract with the employer.

I see a lot of these agreements on a frequent basis in my office, especially now with the Covid 19 pandemic and the move by employers to carry out redundancies and cut costs.

What is involved in this type of agreement?

What is the big decision the employee has to make?

These are the questions I will address in this piece. Let’s take a look, shall we.

What’s in the agreement?

The agreement itself will almost certainly be a standard agreement which will be adapted for the particular employee and the package being offered; but the same types of matters are dealt with in all these sorts of agreements.

The following will be included:

  • The parties
  • Definitions of words and phrases in the agreement
  • Termination of the employment
  • The termination payment, and other payments
  • The tax treatment
  • Legal advice-provision for the employee to get legal advice regarding the agreement, and provision for payment by the employer of the legal costs of obtaining the advice
  • Pension (if any)
  • Health insurance (if any)
  • Outplacement services (if any)
  • Return of company property
  • Release and settlement of any issues or claims arising from the employment
  • Confidentiality
  • Secrecy
  • Non disparagement by the parties
  • Reference or statement of employment
  • Binding agreement
  • Applicable law-Irish law

The proposed settlement/severance agreement will me marked “without prejudice/subject to contract” until executed and witnessed by both parties.

The big question

So, now that you know what is usually contained in these agreements what is the big decision for the employee, particularly in a redundancy situation?

Let’s take a look at a redundancy, although the same type of logic and decision making will need to be applied in other termination circumstances.

The employee is going to be offered a payment by the employer, in return for which the employee is going to sign this agreement and waive all her rights to bring any claim arising from the employment.

The agreement will make provision for the payment of a statutory redundancy payment, to which you are legally entitled, and the payment of an “ex gratia” payment, which is at the discretion of the employer.

The employee may believe, for example, that a) it is not a genuine redundancy or b) she is being unfairly selected. If that is the case and she wishes to pursue the matter at the WRC (Workplace Relations Commission) she will be bringing a case for unfair dismissal. If she wishes to do so, however, she will be refusing to sign the agreement and passing up any “ex gratia” payment proposed by the employer.

If the employee signs, she gets both payments. If she refuses to sign she is still made redundant but only gets the statutory redundancy payment.

This decision needs to be considered carefully.

Yes, he might win at the WRC, but if he does will he win more than he has foregone by refusing to sign the agreement? Is he prepared to wait the 6 months for a hearing, and then pay for the legal costs of representation?

If it is an unfair dismissal claim the employee may win reinstatement or reengagement, but this is unlikely and the relationship between the employer and employee may be strained or broken.

On the other hand if the employee was to win a claim for discrimination he could be awarded up to two years’ salary. So, each case must be looked at on its particular facts and circumstances.

These are the factors the employee must consider when making the big decision to sign or refuse to sign the agreement.

But the bottom line is simple.

On the one hand the employee is being offered a payment to leave the employment quietly and with no fuss; in return he is giving up his rights to bring any claims in the future arising from the employment.

Conclusion

The employee needs to get legal, and probably taxation, advice about any termination agreement he is being asked to sign. Because once she signs the agreement it is probably going to be effective in doing its job to prevent the employee from bringing any further claims against the employer.

There is a straightforward cost/benefit, risk/reward analysis to be done by the employee when it comes to sign or not sign such an agreement.

Want to roll the dice and put all your chips on red/black? This is the stark decision you face. Weigh it up carefully. If you do sign it will probably bind y0u.

Here is a recent example of one such case where the employee signed an agreement but later claimed it was only signed under duress. The WRC did not accept this and held the agreement was effective and binding on the parties.

Categories
Employment Claims

Have you a genuine employment case or merely a grievance? Answer these 4 questions

“Where do I stand?”

“Have I a case?”

Is it me or is it the employer?

These are the sort of comments and questions I hear from employees on a daily basis.

Invariably there is an issue in the workplace, or there has been some friction, or the employee feels undervalued and underappreciated, or has a sense of unfairness about how she is being treated in the workplace.

When they come to me they want to know if they have a legitimate claim or cause of action against the employer, or whether there is any substance to their sense of grievance and a feeling of being hard done by.

My 4 question test

I apply a four question test to get to the bottom of it and provide clarity for the employee by answering the question honestly and plainly. The four questions I ask are:

  1. Has there been a breach of the employee’s statutory right?
    For example, the Organisation of Working Time Act 1997 sets out the rest breaks, working time, and annual leave an employee to which an employee is legally entitled.
    Has there been a breach? This is usually easy to identify. Or has the employee been discriminated against on one of the 9 grounds of discrimination?
  2. Has there been a breach of the employment contract?
    The basis document governing the relationship between the employer and employee is the contract of employment. If, for example, the employer is to provide 5 weeks of paid annual leave and reneges on this provision and only grants 4 weeks there is a clear breach of the contract.
    Or if the contract says you will be reimbursed for out of pocket expenses or paid for overtime and these conditions are not adhered to will give rise to a breach of a provision of the contract.
  3. Has there been a breach of a constitutional right?
    Every citizen has the right to fair procedures, natural justice, the right to join a trade union, the right to their good name, the right to earn a living, the right to practice a religion, and so forth. Has there been a breach of any of the employee’s constitutional rights?
  4. Is the employer guilty of a tort-that is, a civil wrong? Has the employer been negligent and caused a personal injury to the employee? Has the employer failed to provide a safe place of work?

So, what if you feel a towering sense of grievance and unfairness but your issue cannot be found in any of the four foregoing categories?

The likelihood is you have a grievance, not a justiciable cause of action or a legal claim. This grievance or sense of unfairness and not being treated fairly can arise in as many ways as one person can hurt another or say something rude or careless; but this alone will not give rise to an employment claim against your employer that is likely to succeed.

This grievance may be a crucially important part of your life, especially when you have to go to work on a daily basis and spend a great deal of your life in the workplace.

But you do need to check whether you actually have a claim that might succeed, or merely a grievance, however well justified.

Categories
Employment Claims

Employment termination agreements-how effective are they?

Employment termination agreement

The use of a settlement or compromise agreement in the termination of an employee’s employment is something I deal with frequently.

There is a wide range of reasons why the employment is being ceased, ranging from redundancy to difficulties in the employment relationship to allegations of misconduct to allegations of bullying, discrimination, harassment, and so on.

Often the parties will look at the advantages and disadvantages of getting into a full blown dispute, either in Court or at the WRC or Labour Court, and decide that a “negotiated exit” from the employment might be the best option for both employer and employee. This way means that matters are settled confidentially and both parties avoid the prospect of a costly legal battle that could go either way. The employer may also avoid the cost of an investigation and disciplinary hearing in the workplace, something that can be disruptive, divisive, and expensive.

The employee might also, as part of the settlement deal, negotiate a satisfactory reference or, at a minimum, a neutral “statement of employment” which will not adversely affect their future career prospects.

All correspondence up to the signing of such agreements will be on a “without prejudice” basis, just in case the negotiations break down. If the talks do fail then none of the preceding correspondence can be used in evidence later at a hearing between the parties.

The central purpose of such agreements can be boiled down to an essence whereby the employer pays a termination payment to the employee in return for the employee signing an agreement in which she will waive all her rights to bring any further claims against the employer arising from the employment. Both sides avoid a messy conflict with an uncertain outcome and move on with their lives.

Both sides have certainty and in business or life or in one’s career there is a lot to be said for this.

How effective are settlement agreements?

How effective are these agreements? Can the employee come back for another bite of the cherry?

All these agreements will contain a clause confirming the employee has obtained independent legal advice about the agreement or will sign the agreement waiving their right to obtain such advice.

That does not mean that an employee will not later attempt to bring a claim against the employer, notwithstanding the signed agreement. Generally, but not always, such agreements are effective and do what the employer wants them to do: prevent any future claims.

In a WRC case (ADJ-00020068) from January 2020 an employee attempted to have another nibble in circumstances where he had signed a settlement agreement. The employee argued that he did not have knowledge of the Irish legal system and attempted to have the agreement set aside.

The agreement contained the usual clause to the effect that it was an agreement “in full and final settlement, satisfaction, release and discharge of any and all claims … arising out of the employee’s employment or termination of his employment”

The adjudicator declined to hear the case as a consequence.

In like fashion the Labour Court had a similar case in Higgins v Dept. of Foreign Affairs, UDD 1969. The employee had signed a settlement agreement releasing the employer from all liability, damages or causes of action, whether known or unknown, relating to [her] employment … or the termination of that employment, or any other acts or events.

The employee had obtained professional legal advice and the Labour Court held the agreement was effective and dismissed the case.

Effective settlement agreements

An effective settlement agreement will almost certainly be one in which the employee confirms she has had legal advice and there will be confirmation from a solicitor that he has advised the employee regarding the agreement.

It may be sufficient that the employee waives his right to get independent legal advice but I, if I was advising the employer, would warn the employer about the dangers of accepting this and would advise against it.

Moreover, I have seen cases where the advice of an experienced trade union advisor has been held to be effective and binding, notwithstanding the absence of legal training or qualification.

You need to be careful, too, that all of the acts and potential claims that are being waived should be listed in the agreement, with no omissions. For example, if the agreement only refers to claims arising from statute but does not make reference to common law or tort or contract may leave the employer  susceptible to attack on an unanticipated front.

Categories
Employment Claims

What Happens When a Party Does Not Attend a WRC Hearing?

Labour Court Appeals

I attended a WRC hearing recently with a client, the employer on this occasion, and the employee/Complainant did not show up to present his case and be heard.

For our side there was myself, my client and two witnesses and we had prepared thoroughly for the case.

My client and the witnesses had taken time off work and cancelled engagements to be there to meet the claim. I had blocked the day off in my calendar because it is impossible to know how long any case will take to be heard; it depends on a number of factors including

  • The adjudicator
  • The number of complaints
  • The number of witnesses
  • Any documentation to be considered
  • The complexity of the issues to be teased out
  • And so on.

In this case, however, I argued that the case should be struck out for want of prosecution. I argued that if the Complainant wanted an adjournment he could easily have requested one as notification of hearings usually give at least 3 or 4 weeks’ notice and this complainant’s representative advised the adjudicator that his “client” was out of the country.

We have not had a decision yet but I would be hopeful that my application that it be thrown out for want of prosecution will succeed.

My understanding is that unless there is some credible excuse or explanation, and provided the adjudicator is satisfied the non-attending party has been notified of the hearing, that the case will fail.

This is what happened in ADJ-00025136 involving a service worker and hospital and a claim under the Redundancy Payments Acts. The Complainant did not show up and the adjudicator was satisfied he was informed in writing of the date, time, and place of the hearing.

The Respondent was ready to present their case and the Adjudicator found “In these circumstances and in the absence of any evidence to the contrary I conclude that the complaint is not well founded.”

Preparing properly for all these WRC cases takes time and money and it is only right that a party who fails to attend, unless there is an exceptional reason, should be penalised. Perhaps there would be less “no shows” if the parties had to pay an application fee when making the claim, which fee could be returned once they go ahead with their claim and it is not an abuse of process and is not frivolous or vexatious.