3 Common Mistakes Employees Regularly Make

employee mistakes

In my work I meet a lot of employees on a weekly basis. And there are three mistakes that crop up time after time after time.

You need to know what these mistakes are, and ensure to avoid them. Are you ready?

Let’s go.

  1. It’s personal

If you bring a complaint to the WRC (Workplace Relations Commission) or institute legal proceedings in Court the decision maker is going to be concerned about

  1. The facts of your case
  2. The legal issues
  3. The application of the law to your case.

He will not be concerned about whether your employer had body odour or poor personal hygiene or recycled used envelopes or left toe cuttings on his desk or any other personal trait that drove you right around the bend.

In fact, even if your employer is losing his marbles at an alarming rate the decision maker-WRC adjudicator or Judge-will only be concerned about the issues and circumstances of your case and the law.

So don’t waste your energy on worrying about how tedious or annoying or reprehensible your employer is (or was). It’s a waste of time and energy and won’t help your case. Stick to your case:

  1. Prove the facts
  2. Prove how the law applied to your facts means you must win.

Remember, you are trying to prove that there have been breaches of your employment rights or entitlements or contract of employment or you have suffered a personal injury-whatever your cause of action is.

Nobody gives a damn whether your boss stank like an armpit, or was spiteful to stray dogs, or got hammered on a Sunday night with cheap cider and reeked of bargain basement aftershave on Monday morning.

2. It wasn’t perfect

Many employees relate to me how the employer failed in some aspect of an investigation or disciplinary procedure. They expect me to be shocked.

My reaction? “So what?” The question you need to ask: “is this fatal?”

Courts have found on many occasions when looking at the employer’s behaviour in a disciplinary procedure that it does not have to be perfect. An imperfection or infirmity in the carrying out of an investigation or procedure will not mean that the procedure is fatally flawed and you must, therefore, win your case.

Courts have recognised that different employers have different resources to devote to human relations issues. For example, compare the resources available to a leading bank in Ireland and those available to a small business making gates and light engineering products in the middle of nowhere with 3 employees and a dog.

Courts have found that perfection is not required, provided that the broad principles of natural justice are applied. So don’t rely on a small infirmity or flaw or small departure from a procedure in a staff handbook to prove your case for unfair dismissal.

This does not mean that employers can do what they like and the procedures in the workplace are not of vital importance. But building your case on the expectation of perfection from the employer every step of the way may lead to disappointment for you when the decision is handed down.

3. The bullying/stress allegation

Bullying in the workplace is reprehensible and inexcusable. But when it comes to bringing a claim for bullying or heading to the Courts to make a claim arising from bullying or workplace stress, the bar you have to clear to prove your case is a high one.

This was reaffirmed by the Supreme Court earlier this year in Ruffley v the Board of Management of St. Anne’s school.The Supreme Court said that the bar for such claims had necessarily to be set at a high level, for fear of an avalanche of claims arising from grievances in the workplace, as opposed to a recognised psychological or psychiatric injury to the employee.

I have had employees come into me to discuss bullying and stress in their workplace. However, when I dig deeper and unpack their concerns they complain about not getting a pay rise, disappointment in relation to promotion, promises made but not delivered, petty jealousies about other employees or managers, and other disappointments.

These things, although disappointing, do not amount to bullying which is defined as repeated inappropriate behaviour which undermines the victim’s dignity in the workplace.

Conclusion

If you are not happy in your job, or if you are thinking about bringing a claim against your employer, take a look at the three issues above and check that you are not making any of these mistakes.

Warning: When Legal Argument and Syllogistic Reasoning is Not Enough to Win Your WRC Case

legal reasoning

Let’s call a spade a spade.

If you are at a WRC hearing and you have a well constructed legal argument prepared, based on syllogistic reasoning, you can be easily set back on your butt.

First, let me explain what syllogistic reasoning is.

Syllogistic reasoning involves a logical argument based on deductive reasoning. It involves

  1. A major premise or proposition
  2. A minor premise or proposition
  3. A conclusion.

Let me give you an example.

  1. All men will die.
  2. Mick is a man.
  3. Mick will die.

In this example you can reasonably conclude from the major and minor premise that Mick will die one day.

The major premise is generally the rule, the minor premise is the facts of this particular case. And then you have reasonable, logical conclusion based on applying the rule to the facts.

This is how many legal arguments will be constructed. Let’s take a real world example in the area of employment law.

Let’s accept the major premise that to terminate someone’s employment without any reason or notice after they have 12 months service is unlawful because it constitutes an unfair dismissal.

And let’s say the facts of a case are that this is precisely what happened Maureen-she was fired one Monday morning by her boss, Terry, without any explanation and told to pack her things-then you can reasonably conclude that Maureen has an extremely strong case on the grounds of unfair dismissal.

Let’s assume you are Maureen and you go along to the WRC hearing and represent yourself in your unfair dismissal claim. Then a strange thing happens.

Terry starts giving evidence and explaining what happened and breaks down uncontrollably. Terry tells how his wife was diagnosed with cancer two weeks before the incident, he wasn’t himself, did not know what came over him, the Revenue Commissioners carried out a raid on his garage on foot of a malicious complaint from a former disgruntled employee, and his dog died.

The WRC adjudicator just happens to be a middle aged man around the same age as Terry and his wife, coincidentally, was diagnosed with cancer 9 months before. The adjudicator is visibly shaken by Terry’s story and has a great degree of sympathy for him.

In fact, he adjourns the hearing for 15 minutes to gather his thoughts, and let Terry compose himself. When the hearing resumes the adjudicator turns to you and suggests that settling the case might be in your best interest.

What would you do?

**********************************************************

This story has exaggerated facts to illustrate a point. No matter how strong you think your legal argument is a strong emotional story can be hard to overcome, especially if two things are present:

  1. If the adjudicator has a stronger feeling of empathy with one of the parties
  2. There is a conflict of evidence between the parties.

We know, for example, that when an adjudicator at the WRC or a Judge in court is faced with a conflict of evidence he/she will have to choose which version of events he/she prefers.

And that may well turn the case in favour of one party or the other. The Adjudicator decision may well contain a line, “there was a conflict of evidence between the parties and I preferred the evidence of xxxx”.

Therefore no matter how strong you feel your case is and no matter how well you have constructed your legal arguments you may run into a situation where the outcome is far more unpredictable than you expected.

Throw in the fact that each WRC adjudicator is entitled to conduct the hearing however he chooses and it can be a frustrating and unpredictable process. For example, I have been involved in hearings where cross examination of the main witness was not permitted; in other cases it was actively encouraged.

Sometimes, no matter how strong your case, the smart thing might be to retreat from an “all duck and no dinner” approach, and settle it. Especially when you feel that the other party’s version of events is-rightly or wrongly-more likely to be accepted by the adjudicator.

Conclusion

Much of the skill and wisdom involved in any case is required for this type of decision, not necessarily or solely to prosecute or defend the case based on the legal reasoning.

How Employers Can Deal With the Problem Employee (and Avoid Costly Employment Law Claims)

 

problem employee

There’s a lad from outside Mullingar who has a peculiar way of making a living.

I’ll tell you about that another time, though.

Because last week he paid me a visit on different business: the common problem of the “problem employee”?

How do you handle this familiar problem?

Many employers come to me with a massive sense of frustration, sometimes anger.

Their emotions range from a sense that employment law in Ireland is loaded in favour of the employee, to fear of taking any action for fear of a costly claim to the WRC or Court from the employee.

What can you do if an employee is misbehaving or demonstrating a bad attitude or failing to perform or is guilty of misconduct or is forever missing days or guilty of persistent poor timekeeping?

Or is a liability or just not right for your organisation?

Or is he on the fiddle?

Small employers, without the benefit of trained HR professionals in their business, are often frozen with fear and indecision.

Quite frankly, they don’t have a clue what to do or what they are allowed to do to handle a problem employee.

Some employers take a metaphorical lump hammer to the problem; others take the approach of “being nice and hoping for the best”.

Neither of these approaches are recommended, quite frankly.

The Options

Firstly, you need to be mindful of a certain critical time period: 12 months’ employment or “one year’s continuous service”, according to the Unfair Dismissals Act, 1977.

Generally, an employee can only bring a claim for unfair dismissal when he/she has one year’s continuous service in the job. There are exceptions, for example, a dismissal on a discriminatory ground, or a dismissal because the employee has made a protected disclosure (Protected Disclosures Act, 2014).

By and large, though, the employee needs a year’s service.

So, if an employee is not working out, or is simply not right for your organisation, the contract of employment can be terminated.

Over one year’s service?

If the employee has more than one year’s service it is more problematic for you as an employer. The employee has more protection by virtue of the Unfair Dismissals act, 1977.

It provides that an employee can only be dismissed on specified grounds, provided there are substantial grounds justifying the dismissal :

  • Capability, competence, qualifications
  • Conduct
  • Redundancy
  • Illegality
  • Other substantial grounds

To dismiss on one of these grounds you need to ensure all your ducks are in a row; this article which I have written in the past about how to legally dismiss an employee should help.

You do need, however, to afford fair procedures and natural justice to the employee in terminating the employment as these are constitutional rights.

There is one further situation that arises: frustration of the contract. This could arise where an employee becomes ill or suffers an injury that makes it impossible for him/her to do the work. In other words, the employee is unable to fulfill his/her obligations due to incapacity.

It is said, then, that the contract is at an end as it has been frustrated.

Practical examples

Let’s look at some practical examples.

“Susan” is a secretary/receptionist in a medical practice. Her attitude is poor, her absenteeism rate is high, her work is poor, and worst of all, she has plenty of “sass” going on in her interaction with her boss because her boss is a non national.

If she has over 12 months’ service, the option for you as employer in this situation is to manage the situation professionally. You would use a performance improvement plan and/or the disciplinary procedure to let Susan know that her performance and conduct is unacceptable and will have to improve.

You would ensure to afford her the full benefit of your disciplinary procedure and ensure she is aware that improvements are required and if they are not forthcoming the sanctions set out in the disciplinary procedure will be imposed.

If she does not have 12 months’ service and is on probation either because she is in her first 6 months’ of employment or she has had her probation extended, her employment could be terminated.

“Gianluca” is a part time employee but appears to be angling to bring some sort of claim against you. He has already suffered a minor injury-back problem- as a result of lifting some stuff in the store room.

He’s due back to work shortly after his injury and his solicitor is writing to you about accepting liability for Gianluca’s injury. You have observed him carefully for a couple of years now and you know he is just gagging to quit the job and bring some sort of claim to the WRC (Workplace Relations Commission).

You are, quite frankly, walking on eggshells.

What to do? Firstly, report the personal injury suffered in the workplace to your insurer, if you have not done so already, and let the insurer deal with it.

Secondly, when he does come back, deal with him professionally, just like Susan above. Provided you respect the laws and don’t act unlawfully, you have nothing to get overly anxious about.

You do need to ensure you are giving him his correct rest breaks, holiday and public holiday entitlements, and all other employment obligations.

But once you are satisfied you are doing so you need not worry excessively.

The laws are not completely imbalanced or stacked against you, and you have rights too. It’s a myth to say otherwise.

For example, at its most basic Gianluca needs to perform in accordance with the contract of employment, and follow reasonable directions of you as employer and any of his line managers.

Even the Supreme Court held earlier in 2017 held that every wrong that an employee suffers in the job does not give rise to a claim or a legal cause of action.

So stay calm. The dice is not loaded. There is no need to act on any fleeting impulses you might have to take him into a darkened room and teach him a lesson!

Fianlly, Paul is a blocklaying contractor and Jimbo, one of his lads, is threatening to drive him around the bend. He is frequently missing from work, just texts that morning or the eveing before and says he won’t be in.

At this stage paul is getting suspicious that Jimbo is working for someone else a couple of days a week, as it seems to be the same days he is missing all the time.

In any event, the response from Jim should be the same as for Gianuca and Susan: invoke the disciplinary procedure after having the chat/some informal counselling with Jimbo to let him know the rate of “no shows” is unacceptable.

You will see that all these problems can be resolved in a professional way with no undue concern for claims against you, provided you stay calm and deal with the issues coolly and calmly.

Conclusion

Employment law is fundamentally based on the contract of employment.

If you go back through the centuries there was a “master/servant” relationship. If you fast forward a few hundred years there still exists a huge disparity in power between the employer and employee in negotiating a contract of employment.

Generally, it’s a case of, “take it or leave it”.

So statute law such as the Unfair Dismissals Act 1977 and the Organisation of Working Time Act, 1997 were introduced by legislators to protect employees and redress the inherent imbalance in equality of arms between employer and employee.

That’s all that’s happened.

So, if you are an employer, stay cool, abide by the laws and you won’t need to worry excessively about the whole shooting match being loaded against you.

Warning for Employees: Don’t Let an Unhealthy Obsession Cost You Your Job

It’s an easy mistake to make.

It happens the best of us.

Lately, I have come across quite a few instances of this problem when speaking with employees about their issues.

And it saddens and frustrates me.

Let me explain, shall I?

All of us know people who rub us up the wrong way. It may be intentional or completely unintentional but there is one or two people out there who just really wind us up.

When it’s in the workplace, though, this can be a real problem. Especially if the other person is your supervisor or manager.

And the danger you need to guard against is letting this become an obsession for you. Yes, obsession. I have seen it too many times in the last year or so, and it is really frustrating.

I have seen perfectly rational, intelligent, hardworking employees who have come to me for advice. After speaking with them for a little while and unpacking the issues, it often comes down to one individual in the workplace with whom they have an issue.

The problem, though, is they really let it get in on them. To the point of obsession. To the point where the situation is actually having an adverse impact on the employee’s health.

And they are thinking of quitting their job.

What frustrates me most is that they cannot seem to step back from the nitty gritty of the situation and look at their “problem” from a slight distance away.

If they could only do this they would see that they are putting far too much importance on what the manager or supervisor or colleague says or does. They see every interaction as a personal attack on them, their opinion, their integrity, their sense of self.

What’s really happening in a lot of the situations that I have encountered is quite simple: the employee who has come to me has allowed a situation to develop where they have created a massive big mountain of a problem when, in reality, it is only a molehill.

And the hardest part for me? It is incredibly difficult to get them to see this.

And the problem then?

The employee will either overreact or basically talk themselves out of a job and quit a perfectly good job that they like.

Rocky, the boxer

Many years ago we had a lovely boxer dog called “Rocky”. She spent her days spreadeagled on “her” sofa in our kitchen.

But when Tom O’Shea (not his real name) set foot on our property within 80 yards of the house Rocky would jump up off the sofa, growl, bark, and the hair would stand on her back.

We never knew why Rocky reacted like this, but we suspect Tom may have given her a kick some time in her past. And she never forgot.

I am always reminded of Rocky when I speak with these employees because they too react like Rocky when they come into contact with the other colleague.

The difference, however, is the employee is human and can choose how to react; Rocky on the other hand had less sophisticated tools at her disposal. And she just growled.

Viktor E. Frankl

I think, too, of Viktor E. Frankl.

Frankl was a prominent Viennese psychiatrist during the Nazi’s rise to power and was Jewish. Frankl and his family were packed off to concentration camps and he saw his entire family, incluing his pregant wife and children going to the gas chamber

Frankl spent time in 3 concentration camps including Auschwitz and Buchenwald.

But Frankl made an important observation, one which led him to write a bestselling book in later years, “Man’s Search for Meaning”.

His observation was that the people who did best and survived the camps where those people who gave support and their last piece of bread to others. These were people who, despite their circumstances, chose how they reacted to their circumstances.

They did not let their circumstances dictate how they acted or reacted or thought.

They chose.

And Frankl observed that everything can be taken away from you, apart from your ability to choose how you will react in any given situation.

This is something that each individual can choose.

If you are an employee with a bete noire, a nemesis, someone who winds you up so bad that you are making yourself ill and considering walking away from your job, think about Viktor Frankl.

Think about the power to choose how you will react, and don’t give the other person who winds you up the power to compel you to react like Rocky, our much loved boxer dog.

Try to retain perspective on the issue, and look at it from a distance.

I know that’s not easy, but getting the opinion of others might help and prevent you from overreacting in a situation which has simply lost its perspective for you.

2 Years’ Salary Awarded to Van Driver in Unfair Dismissal Case

the labour court

The maximum amount that can be awarded in an unfair dismissal case is 2 years’ remuneration (section 7, Unfair Dismissals Act, 1977).

I had never seen it awarded until this case, DHL Limited and Michael Coughlan, in which Mr. Coughlan was awarded €72,042.88 by way of compensation.

On the 28th July, 2017 the Labour Court handed down its decision in an appeal by the employer of the previous WRC adjudicator decision in the employee’s favour.

Background

The background to this case is an WRC adjudicator decision of 30th January, 2017 to decide that the employee should be reinstated in his job as a DHL driver.

Mr. Coughlan was employed as a van driver for 11 years until his summary dismissal in November, 2015.

Mr. Coughlan brought a claim for unfair dismissal to the WRC and the Adjudicator decided that the sanction imposed on Mr. Coughlan for an accident involving his vehicle was, “disproportionate having regard to all the circumstances.” She ordered reinstatement from September, 2016, when the WRC hearing was held.

Mr. Coughlan had previously accumulated written warnings, with a duration of 12 months each, for a couple of incidents involving his driving, but had no such incidents for 2 years prior to the incident in 19th October, 2015 which led to his dismissal. Mr. Coughlan, at the investigation meeting, admitted that he had misjudged the space available to him while passing another vehicle at the Cork Depot of the employer, and apologised. The damage to the van cost €2,500 to repair.

Following the disciplinary hearing the employer decided to dismiss Mr. Coughlan for gross misconduct involving the incident and damaging of company property. However, the employer’s letter advising him of his summary dismissal made reference to his previous driving problems, even though the last warning he had was expired for some time.

The employer, in its response to Mr. Coughlan’s appeal, relied on his previous record of driving incidents and written warnings, and gave evidence that DHL could not rely on the employee to drive the company vehicles safely and no other option, for example, redeployment, was open to the employer on this occasion.

The head of operations of the employer gave evidence that he felt it appropriate to take the previous driving record of Mr. Coughlan into account when hearing his appeal to the dismissal, notwithstanding that the previous warnings had expired.

Labour Court Findings

The Labour Court found that Mr. Coughlan was confronted with multiple accounts of misconduct at the disciplinary hearing, even though there was no reference to multiple allegations in the letter inviting him to the hearing. The letter only referred to his failure to protect and safeguard company property (the van).

The Labour Court also found that the employer’s decision to dismiss was motivated, partly, by what it saw as its duty of care to the public, and safety grounds; however, this was completely different from the subject matter contained in the letter inviting Mr. Coughlan to the disciplinary hearing as the letter stated he was being invited to meet the allegation of failure to protect and safeguard company property’.

The Labour Court also found that the grounds for summary dismissal without notice are very restricted, as can be seen from established jurisprudence in relation to dismissal, and a reading of Section 8 of the Minimum Notice and Terms of Employment Act 1973, which requires very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.

As the allegation against Mr. Coughlan was that he failed to protect and safeguard company property it was held that this could not constitute gross misconduct justifying summary dismissal, that is, without notice.

The Labour Court also found that the employer did not give due consideration to alternative sanctions short of dismissal, nor did it allow him to offer to pay for the damage to the vehicle.

Furthermore it found that the employer gave too much weight to the previous incidents concerning Mr. Coughlan’s driving, and noted that his previous written warnings had expired by the time of this incident.

The Labour Court, for the reasons set out above, decided Mr. Coughlan was unfairly dismissed.

It took into account Mr. Coughlan’s attempts to mitigate his loss by seeking new employment: He told the Court that in the period since October 2015 he has applied for some 23 or 24 jobs without success. He applied for various roles including that of courier, driver, general operative, cleaner and store person. The Respondent was called to a small number of interviews by named employers but no job offer ensued from any of them.

The Labour Court awarded him €72,042.88 by way of compensation, being the equivalent of 104 weeks’ remuneration, which it viewed was the employee’s financial loss to date attributable to the dismissal.

You can read the full case here.