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.






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‘Complicated’ Employment Law Cases-Avoid This Common Mistake

If I had a euro for every time an employee told me they had a ‘complicated case’ I would have a nice little stash.

My experience is that most employment cases, and most legal cases, come down to one or two very specific issues. These are the issues on which the entire case stands or falls.

Prove this one or two things and you win; fail to do so and you lose. It is nearly always that simple. The rest is window dressing and so much hot air and bluster.

Employees who tell me they have a ‘complicated case’ fall into one of a few possible categories, the most common of which is they are not sure whether they have a case at all or not.

By ‘case’ I mean a stateable case/justiciable claim/cause of action known to the law. A breach of contract. Or a breach of an employment right. Or a breach of a constitutional right.

A proper bone with meat on it.

Grievances, no matter how many, are probably not going to be enough.

Often what the employee has is a sense of grievance or unfairness or injustice, a sense of ‘this can’t be right’, and a whole pile of issues or complaints gathered up over a period of time.

But they are not actually sure whether the whole lot amounts to a ‘hill of beans’, or a genuine claim or cause of action.

Years ago, when I was heavily involved in retailing, I could walk into a convenience store and get a good feel for the turnover by checking a few key metrics:

  1. How many Irish Independents were sold on a daily basis?
  2. How many boards of Brennans white pans were delivered?
  3. How much milk was supplied.

Once I got a good handle on these figures I could estimate, with a good deal of accuracy, the weekly turnover. Most good retailers could, to be honest.

The same applies to what appears to be an allegedly complex,complicated legal problem. A good lawyer will strip away the trimmings in no time flat and identify the one or two issues that form the basis of any claim.

If he/she cannot identify the issue(s) you can rest assured it is not because it is a ‘complicated’ case. It’s because there is no case.

Not too long ago I was involved in a case at the Workplace Relations Commission in which I received a submission from the other side.

It was impressive. If you are impressed with paper. And folders.

The submission comprised in excess of 15 pages and 147 pages of appendices.

Yes, 147 pages.

My submission was 8 pages.

Yes, 8 miserable pages.

But my 8 pages had a few good things going on:

  1. I addressed the issues that had to be addressed in the case
  2. The adjudicator was happy because I made it really easy to read
  3. I addressed the facts
  4. I addressed the law
  5. I said why my client should win and told the adjudicator what I wanted him to do and told him about the law that supported this request.

Let me give you an example or two.

If I have a client who claims to have been unfairly dismissed by reason of redundancy he needs to prove one or two things:

  1. It was a ‘sham’ redundancy and/or
  2. He was unfairly selected.

Other issues like performance, conduct, loyalty, illness related absence, disciplinary record, discrimination, bullying are irrelevant to the case.

Likewise, if an employee claims to have suffered a psychological/psychiatric personal injury in the workplace by reason of workload or stress or bullying or harassment she will need to show:

  1. She has suffered a recognised psychological injury
  2. The employer’s negligence caused that injury
  3. The injury was forseeable and the employer did not act as a reasonable employer would in the circumstances.

If she proves these things she will win, if not her case is almost bound to fail.

If an employee is claiming to have been discriminated against in the workplace he will have to prove facts from which a reasonable inference of discrimination can be drawn.

But to get out of the starting gate he will have to prove these facts first and show he has a ‘prima facie’ case. Only then does the burden of proof shift to the employer with the consequence that the employer has to prove otherwise.

However, if the employee cannot first prove the ‘prima facie’ case the employer has nothing to do as the WRC adjudicator will find the employee has failed to discharge his burden of proof in the first instance.

And the discrimination has to fall into one of the 9 grounds of discrimination.

If it doesn’t then it is not discrimination. And the case will fail.

Conclusion

They say a great story can be told by a simple formula. Like ‘dog chases cat up a tree, cat gets rescued’.

Or ‘boy gets girl, boy loses girl, boy gets girl again’.

These are uncomplicated stories. But incredibly successful down through the centuries.

In a similar way most legal, and employment law, cases, can be stripped down to bare bones and the issue(s) are visible.

If they’re not, maybe you don’t have a case.

But don’t blame the complexity, or the ‘complicated case’. Because it might not be complicated at all when you strip it down to the bare essentials.

2 Cases That Remind Me Why I Love Being a Solicitor (Most of the Time)

irish solicitor

I have been involved in a couple of cases which were resolved this year, and which reminded me why I love my job and get a great deal of satisfaction in my work from time to time.

Both cases involved employees, both involved High Court legal proceedings, and both were settled with satisfactory outcomes for my clients.

The first one concerned a young man who had suffered a catastrophic psychological/psychiatric breakdown in the workplace. Our case was that the employer was negligent and was liable for the injury he suffered and therefore liable to compensate him for the personal injury and loss of earnings resulting from his subsequent inability to work due to the injury.

Our case was that the employer worked him excessively, placed demands on him which were beyond his capacity, his subsequent personal injury was forseeable and he was entitled to be compensated for this. We also pleaded breach of contract and breach of statutory duty in failing to provide a safe place of work in accordance with health and safety obligations.

In any legal contest it is inevitable that there will be at least two sides to every story and our case was not without its weaknesses. There is seldom a guarantee of success and given the nature of the injury my client had suffered there would always be a concern as to how he would be able to deal with a High Court case, cross-examination, and all the other attendant pressures of going to Court.

There was also other factors to be considered such as the length of time since the injury and the loss of income which was causing problems for my client and his young family, not least in relation to paying his mortgage and the normal day to day expenses you incur with a young family.

And there was, of course, the medical argument that he would only be able to fully recover once his case was finalised one way or another. It is very difficult to recover from a psychiatric or psychological injury if the case arising from that injury remains unresolved and there is a chance you will lose and be in even worse financial and health difficulty.

So, after three years or thereabouts the case was settled to his, and my, satisfaction. It gave me a great feeling of contentment when he came to the office to pick up the settlement cheque and he gave me a bottle of whiskey and a hug. It’s no coincidence that his appearance has improved greatly since the settlement and I have no doubt he is on the road to recovery and a new, less stressful phase in his life.

The other case involved a lady who has a professional qualification and is ambitious for her career. She quit her job with one employer and was moving to another as she saw it as a progression on her career path; besides, it was closer to home.

Her application for the new job went well and she was told she had the job, subject to, amongst other things, a satisfactory reference. However, the reference that her old employer provided was an appallingly inaccurate one. Not alone was it inaccurate it was defamatory of our client and painted her as unprofessional and lazy.

The outcome was that the job offer was withdrawn. When she contacted her old employer about the defamatory reference they immediately withdrew the reference and provided an honest, good reference instead. However, it was too late for the damage was done and her proposed new job had gone to another candidate.

We sued the old employer for defamation in the High Court on the basis that they had a duty to provide an honest, accurate reference and the issuing of the correct reference was done too late and our client had lost the new job and suffered other losses, and damage to her professional reputation, as a result of their negligence in allowing the first, bad reference be supplied to the prospective new employer.

It transpired that when a reference was first sought the furnishing of this reference was left to an employee who had a personal grudge against our employee and this employee took the opportunity to put the boot in when the chance arose.

It proved costly for the employer, however, leading to legal proceedings. This case, too, was settled to the satisfaction of our client. It is worth noting that these settlements, like virtually all such settlements, would be settled without an admission of liability by the employer.

But you will see from these cases that the circumstances which might give rise to legal proceedings are wide and varied: and once proceedings are issued it can be a long time between the act giving rise to the legal proceedings and the ultimate resolution of the case.

In the meantime the personal and financial toll that can come to weigh on the person bringing the claim, and their loved ones, can be terribly onerous.

For this reason it gives me a great sense of relief and gratification when the outcome is a satisfactory one and the client is happy and can put the whole affair behind him/her.