The Labour Court Recommends €90,000 Compensation In Unfair Dismissal Claim Against Park Hotel

park hotel unfair dismissal

I have written a number of blog posts about probation and the options open to an employee who has been dismissed whilst on probation.

The general position is that you cannot bring a claim for unfair dismissal under the unfair dismissal acts for section 2(1) Unfair Dismissals Act, 1977 sets out a number of categories of employees who are excluded from the protection of the act as follows:

2.—(1) This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

You will note that the act does not apply to employees with less than 12 months’ continuous service. Accordingly if you are fired with less than 12 months’ service you can almost alwasy forget about the unfair dismissals act, 1977.

Recently, however, a case was brought by a former manager of the Park Hotel in Kenmare to the Labour Court. You may have heard of this hotel as it is owned and run by the high profile Brennan brothers who present that television programme where they go around telling other small business owners how to develop their small hotels or bed and breakfast business.

In this case, however, the general manager of the Park Hotel was employed on a 36 month contract and was dismissed during the probationary period without fair procedures.

Specifically the man was not told of any performance issues, no warning was given that his job may be at risk, no opportunity for representation was afforded to him, he was not given any reasons for the dismissal, and he was not given a right to reply.

The hotel relied on the contract of employment which clearly stated that either party terminate the contract by giving written notice.

How can the employee bring this claim to the Labour Court if the Unfair Dismissals Act, 1977 excludes employees who have less than 12 months continuous service?

Labour Court and Industrial Relations Acts

The employee can bring a claim for unfair dismissal to the Labour Court under the Industrial Relations Act, 1969. This is precisely what happened in this case involving Francis Brennan’s Park Hotel and the Labour Court recognised that employer was entitled to dismiss the employee during the probationary period.

The Labour Court found, however, that the employee is still entitled to fair procedures and natural justice and in this case found that this did not occur.

Accordingly, the Labour Court recommended that the employer pay €90,000 in compensation for the unfair dismissal. Note that this is a ‘recommendation’ and is not legally enforceable.

Why would an employee go through this procedure and perhaps incur legal costs if he only ended up with an unenforceable recommendation which the employer can ignore?

Only the employee can answer that question but he may have hoped that the publicity surrounding the case may have persuaded the employer to settle his claim to avoid reputational damage to the hotel.

He may also have hoped that the employer would accept the moral or persuasive authority of the Labour Court’s recommendation and pay out.

Or he may have taken the case on a point of principle and to restore his good name and professional reputation if he felt that they were damaged as a result of the termination.

Conclusion

If you are an employer you may or may not, depending on your business, be concerned about reputational damage or the likelihood of industrial relations action on foot of a Labour Court recommendation which you may intend ignoring.

If you are concerned then you should ensure fair procedures and natural justice in the termination of any employee’s employment, even those on probation.

If you are an employee with less than 12 months service you may consider going this ‘industrial relations act’ route to the Labour Court; but you may end up with an unenforceable recommendation.

Read the full decision of this case here.

Appeals to the Labour Court-What You Should Know

Labour Court Appeals

If you are not satisfied with a decision in the Workplace Relations Commission you may appeal the decision to the Labour Court.

The Labour Court is quasi-judicial and an adversarial forum (Donnelly v Timber Factors Ltd [1991] 1 IR 553). However, administrative tribunals such as the Labour Court are not bound as strictly as the criminal or civil courts in relation to the rules of evidence, including the rule against hearsay.

Section 44, Workplace Relations Act 2015 provides for an Appeal to Labour Court from decision of adjudication officer. The Labour Court can also deal with an appeal from an employer arising from a compliance notice he has received pursuant to section 28, Workplace Relations Act, 2015.

Each case is dealt with by a Division of the Labour Court; a Division comprises a Chairman, an Employer Member, and an Employee Member.

The time limit for an appeal from a decision of an Adjudication Officer is 42 days from the date of the decision. The day of the decision is the first day of the 42 days and time can only be extended in ‘exceptional circumstances’.

Labour Court business, unlike WRC hearings, is conducted in public and the Labour Court rules are set out in four parts as follows:

  1. Procedure for appeals of adjudication officer in relation to employment equality and unfair dismissal
  2. Procedure for appeals of Compliance notices served on employers
  3. Procedure for appeals in respect of other employment enactments
  4. The Procedure to be followed at the hearing itself.

The Labour Court rules can be found here.

Appeals re unfair dismissal and employment equality acts

The appeal is commenced by using a standard form and a copy of the Adjudication Officer decision. Three weeks later you must submit your written submission which is then sent to the Respondent.

Respondent then has three weeks to file a replying submission.

Extending time- ‘exceptional circumstances’

The time of 42 days allowed for the appeal can only be extended in exceptional circumstances. Useful cases in relation to what is accepted as exceptional circumstances include:

  • SAP Landscapes Ltd v Gutkin & O’Neill UDD 6 & 7/2016
  • Kildare and Wicklow Education and Training Board v Igoe PWD 26, 27 & 28/2016
  • Galway & Roscommon Education Training Board v Kenny UDD 24/2016
  • HSE West v Barry UDD 32/2016

Pre-Hearing Witness Statements

Both parties are required to send in pre hearing witness statements at least 7 days in advance of the hearing. These statements should state

  • The name of the witness
  • A summary of the witness’s evidence
  • Copy documents which will be relied upon at the hearing

A De Novo Appeal

The appeal in the Labour Court is de novo; this means the partries start from scratch and the decision of the adjudication officer of the WRC is completely ignored and has no influence on the decision of the Labour Court.

Fitzgibbon v Law Society [2014] IESC 48 makes this clear, and the appeal body is required come to its own conclusions on the evidence available to it.

However, the party appealing must canvas the same claim, not an entirely new one. (See Dawn Country Meats Ltd v Hill DWT 141/2012).

Written submissions

The parties are expected, in their written submissions, set out

  • The facts which are agreed and in issue
  • The legal basis for the submission
  • The remedy sought (in the case of the complainant)
  • Transcript of the decisions/judgments relied upon

In essence, the parties are to set out their case in full and not focus on the adjudication officer’s decision or how he/she conducted the WRC hearing.

The hearing commences with the party bearing the burden of proof reading his submission; the respondent reads his submission and the parties are invited to comment on the other’s submission.

Eacn party then examinses and cross-examines each side’s witnesses and the Court may have questions for the witnesses.

Parties can represent themselves or engage the services of a solicitor/barrister/HR representative, or whoever he chooses.

Adjournments and witness summonses

A party can seek an adjournment in writing in advance of the hearing, after seeking the consent of the other side first.

The Labour Court has the power, pursuant to section 21, Industrial Relations Act, 1946 to summons witnesses if it so decides.

Appeals

A party can appeal a determination of the Labour Court to the High Court on a point of law only.

(The above is a summary of what I learned from a paper delivered by Alan Haugh BL, Deputy Chairman of the Labour Court, at a Law Society CPD Masterclass on 9th March, 2018).

Are There Conflicts of Interest in Your Workplace? 2 Stories About Representation

workplace conflict of interest

Jackie worked in the same place for 12 years. It’s a well known, large organisation.

Unionised, plenty of workplace policies and procedures.

She liked her job, was good at it, and had a great attendance record.

For about 3 years, however, she was constantly bullied by a man who had a well deserved reputation as being a nasty piece of work, a relentless, sneering bully.

After such a long period of time she had had enough and decided to take action. She summoned up her courage and made a formal complaint. She also went to her union representative and he helped her submit a Workplace related claim to the Workplace Relations Commission.

Jackie was not looking for compensation. All she really wanted, if the truth be told, was that she would be given a chance to tell her story to an impartial listener-the WRC adjudicator- and for the bullying to stop.

As is usual when a claim is submitted to the WRC she had to wait nearly six months for a hearing date. But she was happy as the time elapsed and her big day approached.

Withdrawn

The day before the hearing, however, she received an email from her union representative. He had pulled her case. Withdrawn.

Jackie could not believe it.

After all this time, after all the waiting, after 3 years of bullying and now she was going to get to tell her story to an official body, and the claim was withdrawn.

She demanded to know why it was withdrawn by the union rep; he told her they did not have sufficient evidence or the evidence was out of time, too old. Or something like that. She’s still not sure.

Jackie had her suspicions, though, and began to wonder about the union’s position in relation to her complaints. Was there a ‘political’ reason for pulling the case?

Was the fact that Jackie and the bully were members of the same union a factor in the decision to withdraw? Was there a conflict of interest for the union given that the union represented both employees who were in conflict?

Jackie is unlikely to ever get a definitive, credible explanation for the withdrawing of her case, but friends and ‘sources’ have no doubt about the reason.

Agency Workers

Jimmy and Svetlana were cleaners in another large institution in the south west of the country. They are agency workers. They enjoyed their work and were hoping that one day the place where they worked (‘the hirer’) might one day open up their recruitment and employ cleaners directly, rather than through an agency.

This would give them more security for the future, and more certainly over the location of their job as they would not be shoved around from one place to the other by the Agency who employed them.

After a couple of years, this is exactly what happened: the institution decided to employ cleaners directly.

Jimmy and Svetlana were looking forward to applying for the positions, and hoping for the best. But no formal advertisement or notice was ever given to them.

They only heard about the jobs ‘on the grapevine’ and informally. They couldn’t understand why, and then they began to get onto their union representative.

It transpired that the union had an old agreement with the employer that should jobs become available those jobs would be filled from a panel. The panel just happened to comprise members of the same union but the problem for Jimmy and Svetlana was that they were not going to have a chance of getting one of these jobs.

Why? Because they were not on the panel. Why not go on the panel? They were not allowed to because they were agency workers. It was a vicious circle with Jimmy and Svetlana feeling very much on the outside, even though they were in the same union as the panel members.

It was a Kafkaesque nightmare that saw both Jmmy and Svetlana lose their jobs, which were then filled by panel members.

Jimmy and Svetlana began to think about the unenthusiastic representation they received from their union rep, and began to think about conflicts of interest. How, they wondered, was the union to square the circle of getting 50 people into 10 jobs?

Why did the union represent the workers on the panel to the exclusion of other union members who were agency workers, and not on the panel? Jimmy and Svetlana felt very hard done by and went to a solicitor to see had any of their employment rights been breached.

Common Interests

I have spoken to Jackie, Jimmy, and Svetlana and we came to certain conclusions. I have seen many situations similar to these involving other workers.

When unions represent their members in relation to working conditions and rates of pay in a workplace, for example, it is to the benefit of all workers. There is no conflict of interest as the unions can represent the employees with all the vigour and professionalism and experience they can muster and they represent the interests of the workers.

The movement in Ryanair for pilots, for example, to have union representation is an example of this and the threat to strike coming up to Christmas, 2017 demonstrates the power of workers acting collectively, in concert, with common interests.

Where things get tricky, however, is where workers are in competition or conflict. Then the interests of employee ‘A’ and employee ‘B’ are diametrically opposed.

For example if an employee is alleging that another employee bullied or harassed or sexually harassed him and both employees are members of the same union whose interest does the union represent? One of them? Both of them? Neither?

Conclusion

I very frequently see these types of situations in the workplace, where the representation of one or both parties to a dispute or conflict is hopelessly compromised. It is simply not possible for one person or body to represent the interests of both parties who are in conflict.

It would be like asking the Gardai, or a particular solicitor, to prosecute and defend persons accused of crimes. Just not possible.

No matter what you think of lawyers you will have to admit there is a certain useful clarity and simplicity arising from the relationship where you pay a lawyer and she represents you.

She has your interests, and only your interests at heart.

She cannot entertain a conflict of interest for fear of ruining her professional reputation, being sued for professional negligence, and being reported to, and reprimanded by, her professional body. If she does a good job you might tell a friend.

But the critical point is she has a strong motivation to do her best for you and represent your interests solely, no matter how the dispute pans out.

Construction Workers Improved Terms and Conditions of Employment from October, 2017

construction worker

50,000 workers in the construction sector were granted improved terms and conditions of employment from 19th October, 2017.

The improved terms and conditions include statutory minimum pay, improved pension and sick pay entitlements. The backgournd to the improved conditions and the minimum rates of pay are set out in an Order called “Sectoral Employment Order (Construction Sector 2017)”.

Summary

Pay rates

Category 1 Worker: €17.04 per hour

(General Operatives with more than one year’s experience working in the Sector)

Category 2 Worker: €18.36 per hour

(Skilled General Operatives, Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience, Banks operatives*, Steel Fixers, Crane Drivers and Heavy Machine Operators)

(*Banks operatives are more generally known as banksmen)

Craft Worker: €18.93 per hour

(Craft Workers in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers)

Apprentice

(Apprentices in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers)

Year 1: 33.3% of Craft rate

Year 2: 50% of Craft Rate

Year 3: 75% of Craft Rate

Year 4: 90% of Craft Rate

New Entrant Worker: €13.77 per hour

(General Operatives who are over the age of 18 years and entering the Sector for the first time).

The SEO also includes recommendations in relation to sick pay, pensions and unsocial hours payments.

The full order can be accessed here: Sectoral Employment Order (Construction Sector 2017).

New Employment Regulation Orders (ERO) in the Contract Cleaning and Security Industries-the Essentials

contract-cleaner-employment-regulation-order

Are you in the contract cleaning or security industries?

Good news if you are an employee: from October 1st, 2015 new Employment Regulation Orders (ERO) were signed into law.

Previously, in 2011, the JLC (Joint Labour Committee) system of setting pay and conditions was struck down by the Supreme Court as unconstitutional.

Contract Cleaning Workers

From 1st October, 2015 contract cleaner workers are entitled to be paid a minimum of €9.75 per hour for the 1st 44 hours.

The 1st four hours of overtime should be paid at time and a half with any further overtime being paid at double time.

Sunday hours will attract double time.

The contract cleaning ERO also provide terms and conditions for

  • Annual leave
  • Sick pay
  • Maternity leave
  • Disciplinary procedures

S.I. No 418 of 2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee) 2015

The contract cleaning ERO applies to workers employed by undertakings engaged in whole or in part on the provision of cleaning and janitorial services in, or on the exterior  of,  establishments  including hospitals, offices, shops, stores, factories, apartment buildings, hotels, airports and similar establishments.

Security Industry Workers

Workers in the security industry will see their basic pay rise to €10.75 per hour minimum. All overtime over 48 hours attract pay at a rate of time and a half.

S.I. 417 of 2015 Employment Regulation Order (Security Industry Joint Labour Committee) 2015

The security industry ERO provides terms and conditions in respect of:

  • Annual Leave,
  • Sick Pay,
  • Training,
  • Hours of Work.

It applies to ‘security operatives’ meaning  a person employed by a security  firm  to  provide a security service for contract clients of that firm,  or  a  service  of a security or surveillance nature, the purpose of which is to protect persons and property.

Any breaches of an Employment Regulation Order may be referred to the Workplace Relations Commission for appropriate action.

Companies  may  be  able  to  derogate  from  EROs  in  cases  of financial difficulty, subject to meeting certain criteria.

Security Industry ERO, June 2017