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.

The Zen of Withdrawing a Job Offer

withdrawing job offer

It was to be Mary’s first job, she had recently graduated, and she was devastated. The job offer was pulled.

Wojciech left a good job that he took up 7 years ago when he came to Ireland from Poland. Now he was told the job was “no longer available” and he felt embarrassed about going back to the employer he had just left. But he had a mortgage and young family to take care of, and he was distraught and anxious.

These scenarios are not all that rare.

From time to time I have received queries from employees who have had the misfortune to have had an offer of employment withdrawn. The circumstances can vary widely from a situation where an unemployed person, like Mary, is offered a job to the individual, like Wojciech, who has succumbed to promises and blandishments and left a good, secure job to take up employment somewhere else, only to have the offer withdrawn.

There is also a wide variety in relation to the timing of the job offer withdrawal. It could happen prior to acceptance of the offer by the employee to the time just prior to the commencement of employment.

Timing of withdrawal

Firstly, if the employer withdraws the offer of employment before the employee accepts the offer there is no problem for the employer, and no recourse for the employee as there is no binding contract.This assumes, however, that the withdrawal was not by virtue of a discriminatory ground (there are 9 grounds of discrimination). Learn about discrimination in the workplace here.

A discrimination based claim arising from an interview or offer of employment is possible even in circumstances where the employee is unsuccessful at interview or has been successful but the job has subsequently been withdrawn. Normally, you have to be an employee to bring an employment related claim, but not in this situation of alleged discrimination.

Secondly, the employee has accepted the offer of employment but has not yet commenced employment. Once an offer has been made and accepted the long established principles of contract law apply. That is, is there has been and offer and acceptance of tha offer and the parties intended to enter into legal relations then a binding contract is in place.

However, that contract can be terminated in accordance with the terms of the contract. This would involve giving the employee the contractual notice period of the termination.

If the contract had a probation clause, and it contains a short notice period-for example one week-the potential exposure of the employer in a breach of contract suit would be only for one week’s salary and whatever benefits the employee would have been entitled to.

This gets more expensive for the employer if the notice period was, say 3 months, for the loss to the employee of withdrawal of the offer of employment would be 3 months salary plus benefits, if any.

Another factor to be considered is any other losses or costs that the employee has incurred as a result of the job offer withdrawal. The employee could, for example, have incurred costs in moving home or making other arrangements in reliance on the new job coming through. All of these costs and claims will have to be carefully considered by the employer in settling any claim by a disgruntled, disappointed employee, as they will doubtless be claimed in any breach of contract legal proceedings.

Written offer versus oral

The terms and conditions of the employment contract will be more difficult to prove if the offer of employment was only made orally. There is no problem, however, with a perfectly valid contract being established, even in the absence of writing, on the basis of oral/verbal representations.

However, proving the various terms and conditions, such as the notice period or whether there was a probation period will be far more problematic in the absence of any written note or memorandum.

Regardless of when the offer is pulled the employer would be well advised to keep good, clear records setting out why the offer has been withdrawn and which can be called upon to refute any claim of discriminatory treatment.

How can the employer protect herself? The use of pre-conditions is one effective way.

Pre-conditions

To avoid the problem of having to withdraw an offer of employment the employer should consider the use of preconditions-that is, making the offer of employment subject to certain requirements. These could include:

  • The employee having the qualifications claimed
  • Taking up of satisfactory references
  • The employee can legally work in the jurisdiction
  • The employee has any necessary licences or memberships or accreditations, if appropriate
  • No issues arising from a restrictive covenant in a previous contract of employment

Ensure that you refer to whatever preconditions you want to impose in all correspondence to the potential employee, and that the letter of offer states clearly that the offer is subject to and conditional upon the satisfactory fulfilling of the pre-conditions.

Employers: Don’t Make the Mistake of Looking for ‘Bullet Proof’ Contracts or Waivers

Mick came in to see me last week. He had had enough.

‘Enough is enough’, he barked.

Mick is a small employer. Old fashioned, grim, swarthy.

He had enough of this employment law nonsense. He was looking for a way to ensure that his workers would stop giving him grief, and ‘cop themselves on’.

Or, as he put it, ‘show up and shut up and do what they’re told’.

‘Now? Now, they’re always going on in such a bloody tiresome way about their rights..paternity this, maternity that, force majeure, bereavement leave, unfair dismissal, bullying, harassment, health and safety. In the good old days if a lad came and complained about bullying I’d tell him to grow a pair of balls and sort it out in five minutes at the back of the shed..’

‘Mick, my friend, take a seat.That ship has sailed’, I said.

When he calmed down Mick made it clear he wanted two things:

  1. A “bullet proof” contract of employment
  2. A form or agreement that an employee would sign when he was leaving promising he would not bring any claims against Mick after he was gone.

Bullet Proof Contract

What Mick wanted was a contract that set out exactly what the employee could and couldn’t do, and it was heavily loaded in favour of Mick and the needs of his business.

I had to explain to him that I could help him with that but it would not be bulletproof. I told him that regardless of how he and a future employee might negotiate an agreement, and even if the employee went ahead and signed it, the employee still had legal rights and entitlements, no matter how one sided it was drafted.

Therefore, no matter what was put in the contract, no matter how agreeable (or naive) the new employee was, no matter how keen he was to work for Mick (or anyone), the new employee had statutory rights.

These rights are set out in the statute books in pieces of legislation such as the Unfair Dismissal Acts or the Organisation of Working Time Act or the Redundancy legislation or the Payment of Wages acts.

He also had rights to fair play in raising grievances in the workplace or how any disciplinary procedure might be carried out, I told him. These were set out in statutory instruments. I could see Mick visibly wincing, and the blood draining from his face.

On top of that, I had to tell Mick that employees had rights arising from EU law, common law, and the constitution. I could see Mick visibly perking up when I mentioned “Bunreacht na hÉireann”.

Nevertheless, I had to advise Mick that no matter what way the contract was drafted the employee had protections and rights which were imposed on the employment relationship, whether he liked it or not and whether the employee was agreeable or not.

And he had to just get over it and perhaps improve his relationship with his staff, starting with how he viewed them.

A Leaving the Employment Indemnity/Waiver

He also wanted some sort of a one page, straightforward, easy to understand form which would do two things:

  • Prevent the employee from working for any competitors or starting his own business
  • Promise not to bring any claims against Mick.

I explained to Mick that if he wanted to try to prevent former employees from working for competitors or starting their own business nearby or stealing Mick’s customers or staff he needed to provide for this in the contract of employment. He would need a restrictive covenant which would only be enforceable if it was reasonable.

I had to break the news to him that looking for an employee to sign such a form when he was leaving Mick was too late, and akin to bolting a stable door when the horse was long gone.

As for promising not to bring any claims against Mick, I asked Mick to think about this: ‘why would an employee do that? Why would he give up those rights without some incentive? Would he not be asking, if presented with such a form, what was in it for him?’

In short, if he wanted the employee to waive his rights in respect of claims arising from the employment he’s better get out the cheque book and provide an incentive. Because, otherwise, it would be an act of folly for an employee to sign such a form.

And even if he did it could be overturned and set aside later on as he could claim that he did not know what he was signing and had no legal advice at the time.

Conclusion

Mick learned that the answer to his staff problems was in improving his attitude and approach to his employees. This would lead to a better atmosphere in the workplace, lads taking more care with his equipment and vehicles, a better working relationship, and less chance of claims against him.

And if there were claims against him?

Provided Mick did not ride roughshod over their rights, give them contracts of employment that were fair and lawful, maybe have a staff handbook in the workplace, too, to deal with discipline and grievances and bullying, he would have a far better chance of successfully defending any claims that arose.

Or even make it less likely that claims would be brought once the employee learned the chances of success were not great.

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.

Implied Terms of Employment in the Employment Contract-What You Should Know

implied term employment contract
Employment contract

When a contract of employment is being drawn up it is impossible to provide for every eventuality in the work relationship between employer and employee.

For this reason certain terms of employment will be implied into the contract, and together with the express terms set out in the contract, form the contract of employment.

What are they? When will an implied term arise? How will you know?

Firstly, it is not always clear cut as to whether a particular term is implied into a contract; but there are some fundamental terms that certainly are implied into every contract.

Let’s take a look at those, shall we?

And let’s also look at when this is likely to arise.

Conditions for Implied Terms

There are a number of tests which must be passed if you are to imply a term into an employment contract:

  • Custom and practice

If you are to rely on custom and practice to incorporate an implied term into a contract the customer should be “reasonable, notorious (well known), and certain.” This might arise, for example, where the employer pays an annual bonus for many years.

  • Business efficacy

This arises where a term is implied to give a contract efficacy-that is, to make sense of it and make it workable. This would occur where it is “obvious and necessary”, for example the obligation for a lorry driver having a driving licence.

  • Officious bystander test

This occurs where something is so obvious that it goes without saying, and a third party observer would agree that it was blatantly obvious

  • Conduct of the parties after the contract is made

The conduct of the parties after a contract has been made and employment has commenced can give rise to an implied term being incorporated into the contract. It would be necessary to show an intention by the parties to include it as a term.

  • Terms implied by statute

An example here would be if there is no notice period expressly stated in the contract it is implied that the statutory notice period will apply.

  • Terms implied by law

These would include the obligation on the employer’s part to provide work and on the employee’s part to follow reasonable direction and show good faith and loyalty to the employer.

terms implied by the constitution

Examples would be the rights to joint a trade union, rights to fair procedures in reaching decisions which affect the rights of the employee, and the right to earn a living.

Let’s take a look at some well accepted implied terms.

Common Implied Terms

  1. The mutual obligation to maintain trust and confidence in each other

Both employer and employee are obliged to conduct themselves in a way that can allow each party to have trust and confidence in the other party.

The employee will often, in a constructive dismissal case, point to the unreasonable conduct of the employer and claim that he could not be expected to continue to have trust and confidence in the employer.

The obligation works both ways and an employer who discovers an employee cannot be trusted with handling cash for example, no matter how small the amount, can reasonably claim that he cannot enjoy trust and confidence in the employee any longer.

2. The duty of loyalty

It is an implied term that the employee will faithfully serve the employer and will not act against the best interests of the employer.

3. Giving references

There is no obligation on the employer to give a reference, but where one is given there is an implied term in the contract that the reference is accurate and fair.

4. Grievance procedure

It is almost certainly the case that there is an implied term in the contract that the employer will deal with complaints or problems from employees fairly and in a timely manner. This is the case even where the employer does not have a grievance procedure or policy in the workplace.