The Intermeddling Well Intentioned Friend/Partner-Don’t Become a Victim

meddling friend

One of the most annoying, frustrating individuals I frequently encounter is the well meaning, well intentioned supporter/friend/partner/spouse.

He miraculously appears

  1. To know the law inside out
  2. To know all the facts and circumstances of the victim’s unfortunate experience in the workplace.

He, and it’s nearly always a he (sorry lads), insists on answering all the questions I put to the aggrieved, distressed employee who has come to me with a problem arising from the workplace.

He means well, sure, but how he can tell me what happened in the workplace on various dates when he was in a different parish is a source of mystery and puzzlement to me. And when he has never worked as much as 5 minutes in that workplace.

How he can tell me, with such vivid accuracy, what the colleague or rude customer or ignorant manager/supervisor said to the ‘victim’-the employee I am trying to assist and advise-baffles me.

Of course, the truth is he doesn’t know what happened or what was said; all he knows is what he has been told by the lady who has come to me for advice.

So, why not let her speak?

Why not let her tell me what happened?

Why not let her tell me what is on her mind?

Why not let her give me first hand evidence by her direct account rather than his second-hand coloured version of hearsay?

Some lads are just irresistible.

No matter how much you try to ignore them, no matter how much you avoid eye contact for fear of encouraging them, no matter how reasonable you act in putting a few questions to the upset employee it proves to be an exercise in futility. They are incorrigible.

And then when it comes to the law-my goodness-they have Googled and researched to their heart’s content for weeks on end and have finally come across one or two cases that have a passing relationship to their partner’s case.

And they have noted the amount of compensation awarded and cannot see why their partner’s case is not worth at least this much along with a significant premium.

The fact of the matter, however, is that these lads know as much about the law as I know about root canal treatment.

Or treatments for depression.

Or genetics or the value of closely studying yeasts.

The best thing they could do would be to give support-real support-to their partner/friend/spouse. Not to interfere or purport to speak for them or overbear their mind to the point where the victim is sitting there without a voice or an opinion and getting increasingly unsure of what happened that led to the problem in the first instance.

But just let them talk, let them tell their story.

Don’t be one of these lads.

You’re in the way.

Sorry. I know you mean well, and you have your friend’s/partner’s interest at heart.

But you would be better off letting your partner/spouse tell her story in her words.

Because apart altogether from the benefit from a legal perspective it’s also therapeutic for the person you love.

If you are the employee, you need to be aware of this phenomenon and avoid it like the plague. It will hinder, not help, you.

It may involve some ‘tough love’, some honesty.

But sometimes ‘tough love’ is just what we need, and what’s right.

3 Mistakes I Have Observed at the WRC/Labour Court in the Last 10 Months

irish solicitor

I have represented a good deal of clients in the Workplace Relations Commission and Labour Court over the last 10/12 months. In that time period I have observed what I consider to be 3 significant mistakes at those hearings.

You might learn something from them; I know I have.

Let’s take a look, shall we?

1. Asking too many questions in cross-examination

I acted for a client-an employee-in the WRC who had a great story to tell.

I took him through direct evidence and this was his opportunity to tell his story. My job was to ensure he got to tell all his story in the most sympathetic light to his case.

I did an average job but did leave out two very important questions. These 2 questions were vital pieces of evidence and left a couple of gaps in my client’s evidence.

I need not have worried for too long, however, because the HR representative for the other side (the employer) did my job for me when he was cross examining. He asked the questions that I had forgotten and my client took the opportunity with both hands and plugged the holes in his original evidence.

It is arguable that this was even better than if I had asked the questions because the fact that the answers came out in cross examination may have given the evidence even more credibility.

The big mistake? The HR representative for the other side asking too many questions.

Sometimes the best thing you can do in cross examination is shut up and sit the hell down.

Don’t pay any heed to Rumpole of the Bailey setting a fiendishly clever trap for a witness; don’t mind the cross examination scenes you see in TV crime dramas or Top Gun when Tommy Lee Jones cross examines Tom Cruise.

These pieces of storytelling or theatre are just that and should be recognised as such.

The lesson? Don’t ask questions in cross examination for the sake of hearing your own voice; sometimes the best thing you can do is shut up.

2. A stray document

Another mistake I encountered was being given a bunch of documents by the representative for the other side and finding a document-a letter-which was of immense value to my client’s case and which we did not know existed.

And even if we knew it existed we would not have had any right to it as the other side could have claimed it was entitled to legal privilege.

But here it was amongst a huge bunch of the usual stuff like a diamond in a pigsty.

The value of the document was that it showed the other side-the employer-was told something by a professional advisor, did not act on it and this failure to act ultimately led to my client’s job loss.

This went to the heart of our claim for unfair dismissal.

The mistake? We should never have know of the existence of this document, never mind come into possession.

3. Failing to settle a case

This case involved a number of employment related claims at the WRC (Workplace Relations Commission). But there was also a personal injury claim in being.

The HR representative for the other side (the employer) recognised that our case was a very strong one and the signals from the Adjudicator was that they would be well advised to talk to us with a view to settling. We were well ahead.

We took a break and negotiated for a little bit and there was not a huge difference between us in the end about the money stuff but we did not agree.

The mistake, in my view, was the the HR representative failed to recognised that if the case was settled it would have been on the basis that all claims arising from the employment were settled.

This would have included the Personal Injury claim. This is very significant.

This would have been a great piece of work for his client, the employer, and would have given him a great deal of comfort and certainty. Personal injury claims, if they go against you, can be expensive.

But the HR person seemed unable to recognised this value, or did not have the competence or confidence to do so.

A relatively small amount of extra money would have settled the whole shooting match-that is, all claims arising from the employment, including the personal injury claim.

Instead the hearing went ahead and we won a decent award. And the Personal Injury claim is still in being and will be pursued.

Conclusion

We all make mistakes but the best thing we can do is learn from them, file away the lessons, and move on with confidence that we will not make the same mistakes again.

Hopefully I will avoid these 3 mistakes that I came across in the last 10/12 months.

‘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.

Reinstatement of Dismissed Employee-A Warning for Employers

unfair dismissal-1

Are you an employer?

If you have dismissed an employee you are almost certainly aware that a successful claim against you by your former employee can lead to an award of compensation of up to 2 years’ salary.

But did you know that there are 2 other remedies that can be awarded if the employee’s claim succeeds?

Yes, the Workplace Relations Commission adjudicator, in an unfair dismissal hearing, can also order that the employee be reinstated or reengaged. This can be the worst possible outcome for some employers.

It is not a frequent outcome to an unfair dismissal claim and more often than not the employee will only tick the box on the WRC claim form seeking compensation. If this is the case then the adjudicator has no decision to make once he decides the employee has been unfairly dismissed.

But sometimes an employee will seek reinstatement to their old position. He may do this for tactical reasons-for example, it may encourage the employer to attempt to settle the claim before it goes to a hearing at WRC for fear of losing.

On other occasions, however, by virtue of the nature of the industry or specialised nature of the job, the employment prospects for the dismissed employee may be poor. If this is the case the employee may be perfectly happy to resume his old job, or an alternative position in the same organisation, which can be an equally bad result for the employer, who would be happy to never see the employee again.

This can cause a major headache for the employer who will doubtless argue that the relationship between employer and employee has broken down and there is a lack of trust and confidence between the parties and they should not be forced into resuming the old relationship.

This is a widely used and accepted argument. But it’s not always successful.

A Banker v A Bank Adj ADJ-00001266

The WRC adjudicator, on 28th March, 2018, made an order for re-instatement in this case involving a banker versus his former employer, a bank. The banker, a trader, was dismissed for gross misconduct and brought a claim for unfair dismissal.

Without going into all the details (there is a link below for full details of the decision) the decision of the adjudicator, Mr. Kevin Baneham, was that the unfair dismissal claim was to succeed due to the imperfections and flaws in the bank’s disciplinary procedure which led to the dismissal. The next step to be decided was the appropriate redress for the employee.

The redress sought by the banker, once he succeeded in his claim, was re-instatement. The adjudicator agreed that re-instatement and re-engagement were possible awards as the banker was a popular employee whose performance appraisals were good and was a good team player.

Mutual trust and confidence/disharmony

The bank, however, argued that re-instatement was not appropriate as it could lead to a poor relationship between the parties in the future, there would inevitably be disharmony, and the relationship of mutual trust and confidence between the parties was shattered. The adjudicator did not agree.

The adjudicator had regard for the fact that the banker operated in a strictly regulated environment and industry and a dismissal would possibly be fatal to obtaining alternative employment in such an industry, given the relatively limited options. For this reason the adjudicator ordered that the employee be re-instated as it was ‘just and equitable in this case’.

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the re-instatement by the respondent of the complainant in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

You can read the full decision in this case here: ADJ-00001266

Lessons for employers and employees

If you are an employer ensure you or your advisor checks the WRC complaint form to see if the redress sought by the employee includes re-instatement or re-engagement.

If you are an employee you may consider nominating those options as redress you are seeking as it may put some pressure on your former employer to settle the case before it goes to hearing, for fear you will win and an order for re-instatement is made.

New Pay Rates and Conditions of Employment for Plumbers and Pipefitters

plumber and pipefitter SEO

Are you a plumber or pipefitter?

If you are there is a new sectoral employment order which sets minimum pay rates and other conditions of employment for you.

The sectoral employment order (SEO) came into force on 6th March, 2018 and covers the following employees:

Qualified Plumbers and Registered Apprentice Plumbers (Craftsperson) and Qualified Pipefitters and Registered Apprentice Pipefitters (Craftsperson) working in the Sector.
For the avoidance of doubt qualified plumbers and pipefitters who have acquired additional or advanced welding qualifications and who are required to function as welders on a day to day basis within the sector come within the scope of this Order.

Rates of Pay (hourly)

Category 1 €22.73
Category 2 €23.33
Category 3 €23.60

Apprentices

Apprentice Year 1 33.3% of Category 1 hourly rate of pay

Apprentice Year 2 50% of Category 1 hourly rate of pay

Apprentice Year 3 75% of Category 1 hourly rate of pay

Apprentice Year 4 90% of Category 1 hourly rate of pay

The SEO also defines the normal working week, normal daily working hours, and unsocial hours payments.

  • Hours worked between normal finishing time and Midnight Monday to Friday inclusive-time plus a half
  • Hours worked between Midnight and normal starting time Monday to Friday-Double time
  • First four hours worked after 7 am on Saturday-Time plus a half
  • All other hours worked on Saturday-Double time
  • All hours worked on Sunday-Double time
  • All hours worked on Public Holidays-Double time plus an additional day’s leave

The SEO also deals with pensions, pension contributions, a sick pay scheme and how disputes are to be resolved.

Legally Binding

This SEO is legally binding in the sector, regardless of whether the employer has a unionised workforce or not, as these are statutory minimum rates and conditions in the sector. These SEOs replace the old Registered Employment Agreements which were declared unconstitutional by the Supreme Court in 2013.

Here is a link to the full order: SECTORAL EMPLOYMENT ORDER (MECHANICAL ENGINEERING BUILDING SERVICES CONTRACTING SECTOR) 2018