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Employment Claims

Have you a genuine employment case or merely a grievance? Answer these 4 questions

“Where do I stand?”

“Have I a case?”

Is it me or is it the employer?

These are the sort of comments and questions I hear from employees on a daily basis.

Invariably there is an issue in the workplace, or there has been some friction, or the employee feels undervalued and underappreciated, or has a sense of unfairness about how she is being treated in the workplace.

When they come to me they want to know if they have a legitimate claim or cause of action against the employer, or whether there is any substance to their sense of grievance and a feeling of being hard done by.

My 4 question test

I apply a four question test to get to the bottom of it and provide clarity for the employee by answering the question honestly and plainly. The four questions I ask are:

  1. Has there been a breach of the employee’s statutory right?
    For example, the Organisation of Working Time Act 1997 sets out the rest breaks, working time, and annual leave an employee to which an employee is legally entitled.
    Has there been a breach? This is usually easy to identify. Or has the employee been discriminated against on one of the 9 grounds of discrimination?
  2. Has there been a breach of the employment contract?
    The basis document governing the relationship between the employer and employee is the contract of employment. If, for example, the employer is to provide 5 weeks of paid annual leave and reneges on this provision and only grants 4 weeks there is a clear breach of the contract.
    Or if the contract says you will be reimbursed for out of pocket expenses or paid for overtime and these conditions are not adhered to will give rise to a breach of a provision of the contract.
  3. Has there been a breach of a constitutional right?
    Every citizen has the right to fair procedures, natural justice, the right to join a trade union, the right to their good name, the right to earn a living, the right to practice a religion, and so forth. Has there been a breach of any of the employee’s constitutional rights?
  4. Is the employer guilty of a tort-that is, a civil wrong? Has the employer been negligent and caused a personal injury to the employee? Has the employer failed to provide a safe place of work?

So, what if you feel a towering sense of grievance and unfairness but your issue cannot be found in any of the four foregoing categories?

The likelihood is you have a grievance, not a justiciable cause of action or a legal claim. This grievance or sense of unfairness and not being treated fairly can arise in as many ways as one person can hurt another or say something rude or careless; but this alone will not give rise to an employment claim against your employer that is likely to succeed.

This grievance may be a crucially important part of your life, especially when you have to go to work on a daily basis and spend a great deal of your life in the workplace.

But you do need to check whether you actually have a claim that might succeed, or merely a grievance, however well justified.

Categories
Employment Claims

The Towering Fear of Losing Your Employment Case-Don’t Make This Mistake

Michael carried his workplace grievances around with him like a man dragging a clanking chain.

It all started about 12 months ago when his employment was terminated unexpectedly. Michael was shocked and firmly believed he was unfairly dismissed. 

So he submitted a claim to the Workplace Relations Commission under the Unfair Dismissals Act 1977. 

Michael read somewhere that it was a good idea to make a data request of the employer under the Data Protection legislation/GDPR. He had read about a case for constructive dismissal had been won because the employee had made a data access request and it uncovered email evidence of the intention to terminate the employee’s employment. The employee was awarded €50,000(Data Access Request Uncovers “Smoking Gun” Evidence to Win €50,000 Constructive Dismissal Case).

But when Michael received his personal data from the employer he believed it was not complete-there was stuff missing. So he made a complaint to the Office of the Data Protection Commissioner. 

He was then deeply unhappy with the way the Office of the Data Protection Commissioner dealt with his complaint and commenced legal proceedings against that office.

By the time Michael came to visit me he had also submitted a claim to the Injuries Board because he believed he had suffered a psychological or psychiatric injury as a consequence of the anxiety and stress that the dismissal from his job had caused.

His WRC hearing is coming up next week and he is getting nervous. Nervous he will lose and his sense of grievance and wrong will be deepened even further.

Now he sits in front of me and I am thinking hard about the best way to break it to him. By “break it to him” I mean my view that apart from a towering sense of grievance the only real cause of action he has is the unfair dismissal claim.

And I truly believe his prospects with this claim are less than 50/50. Because there is a good chance the employer will be able to prove there were “substantial grounds” to dismiss. (There had been a few disciplinary issues over the years with a live warning on his file).

Fear of picking one claim

I meet quite a substantial number of persons who are deeply aggrieved with the unfair way they believe they were treated by their employer. 

But when they must pin their colours to the mast and put their claim in front of a third party such as a Workplace Relations Commission adjudicator they are afraid. Afraid of losing. Afraid that the third party will not see the situation in the same light as them.

So they search around. They search around for other allegations and claims to make because they want to win and get one-something-over on the employer.

Because they want an “each way” bet, just in case their claim fails. They are confident, of course, but just in case..

The essence of the claim

When I look at the facts, however, I see that when the claim is stripped down to its essence the issue to be decided will be a simple one: was the termination of the employment a discriminatory dismissal?

If Michael can prove this he wins. If he cannot, his claim is bound to fail. All the other stuff will be a sideshow, an attempt to nail the employer with something. But that’s all.

Avoiding the stark truth

Michael, like many employees I meet, will raise all sorts of spurious, tangential grievances and complaints because they want to avoid the stark truth. The truth that their claim may fail and it will hurt.

The third party

No matter how strongly you feel about the way you were treated in the workplace, regardless of your dispute with a property owner or a neighbour or anyone else for that matter, ultimately a third party will decide on the merits of your case.

This third party may be the Workplace Relations Commission, the Labour Court, any of the Civil Courts (District, Circuit, High, Supreme). It doesn’t matter-the bottom line is somebody will give a binding opinion on whether your case wins or loses.

Conclusion: be honest with yourself

You need to accept that you may win, or you may lose, but you need to be honest with yourself. Let the case or claim stand or fall on its merits, its facts, the law supporting it.

Don’t waste your time trying to concoct a case if none exists. You owe it to yourself to let a decision be made, if that is what you want, give it your best shot and appeal if necessary.

Then, accept it and move on.

Categories
Employment Claims

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.

Categories
Blog Employment Claims

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.

Categories
Blog Employment Claims

How to Make an Employment Related Claim

unfair dismissal

Had enough?

Are you at breaking point?

Are you considering bringing a claim against your employer?

Are you unsure of the procedure and what to do?

Are you worried about legal costs?

By the end of this piece, I hope you will have a well informed grasp of what’s involved and what you need to consider.

The 1st thing you must do

Before deciding to bring a claim against your employer, there is one thing you must do.

You must raise your issue internally in your workplace. This will involve using the grievance procedure in use in your employment.

Because when you go to a Rights Commissioner hearing or an Employment Appeals Tribunal or any other venue, including Court, it will help your case enormously that you have tried to sort out the problem in the workplace.

You simply must give the employer the opportunity to put right what you say is wrong. Even if he doesn’t, and you know he won’t, it is strongly advisable to make your best efforts to sort out the problem.

Because later, if you do bring a claim, you will appear to have been the reasonable one and mainly concerned with having the difficulty sorted out, not making a claim.

Where can you bring your claim?

There are three types of venue to bring a claim:

  1. the specialist employment related forums such as the Rights Commissioner Service and the Employment Appeals Tribunal (this is set to change in October, 2015 with the Workplace Relations Act coming into law)
  2. Civil Court, for example the District Court, Circuit Court or High Court
  3. the Equality Tribunal.

The EAT and Rights Commissioner service can hear most employment related claims, and, for many claims you have a choice of which one to use.

The Rights Commissioner service is the bottom rung of the ladder and is probably the least intimidating place to bring a claim. One Rights Commissioner sitting alone at the head of a table hears the complaint with the parties sitting both sides of the table to present their case.

This service is designed to be informal and not at all intimidating.

The EAT hearing is a bit more formal with 3 people sitting to hear the complaint. The Chairperson will be a barrister or solicitor appointed to the Tribunal by Government; there will also be an employer representative from a body such as IBEC, and an employee representative from a trade union.

Civil Courts might be chosen in certain circumstances:

  • where you are bring a case for breach of contract or wrongful dismissal
  • where your claim is for a non physical personal injury such as stress (you would have brought this the Injuries Board in the first place but they tend not to deal with non physical injury cases and simply authorise you to bring your claim in Court by way of legal proceedings)
  • gender discrimination claims can go straight to the Circuit Court

The Equality Tribunal deals with all forms of discrimination in the workplace and they will be your 1st port of call if you are claiming that you have suffered discrimination in your job. Bear in mind that your discrimination must be on one of 9 grounds.

The 9 grounds are

  • Gender
  • Marital status
  • Family status
  • Sexual orientation
  • Religion
  • Age
  • Disability
  • Race/colour/nationality/ethnic or national origins
  • Membership of the travelling community.

The procedure and the 1 form you will need

The vast majority of employment related claims will start by the filling out of the Workplace Relations Complaint Form. You can access this form here on the Workplace Relations website.

The form can be filled in and submitted online. It will ask you for your details, the details of your employer, your complaint, what legislation you are claiming under and some other relevant details.

You should receive an acknowledgment of receipt of your complaint immediately once you have submitted the form. However you could be waiting 12-18 months for a hearing date.

It’s during this time that some efforts may be made to settle the dispute. This can occur by the Workplace Relations Early Resolutions service contacting the parties or by the parties themselves, perhaps through their solicitors, trying to settle the problem.

How much will it cost?

When you go to Court, the winner takes all.

By this I mean that if you win your case, the other side will almost certainly be ordered to pay your costs (as well as their own).

That’s not the case in employment cases at the EAT or Rights Commissioner service-each side pays their own costs.

So, how much will you have to pay? Well, it depends on how much time goes into preparing your case, how much time is spent at the hearing, whether counsel is instructed, and so on.

You should discuss this aspect of your case at the outset with your solicitor. He should be able to give you a good idea, but it will only be an estimate.

The difficulty in giving you exact figures lies the the huge difference between cases. For example, a half hour hearing with a Rights Commissioner over a very straightforward issue compared to a complex case involving counsel before the Employment Appeals Tribunal over a number of days will incur wildly different costs.

Enforcing decisions-what happens next?

If you are successful and win a positive decision, then the employer has 6 weeks within which to implement it. If he fails to do so you can make a complaint to another body in order to have your decision enforced.

A Rights Commissioner decision can be referred to the Labour Court for confirmation of the original decision. Once the Labour Court confirms it you can go to the Circuit Court for a Court Order which can be enforced against the employer.

An EAT decision can also be enforced through the Circuit Court with an order for payment being made.

How to decide what to do next

Deciding to bring a claim is a big decision.

It’s not easy, and the consequences of bringing one and losing, or winning, can be enormous.

You don’t have to suffer in silence though, or say nothing and stand idly by if your rights are being ignored or trampled upon. But you do have to be sure that you have a good chance of success and you do need to know whether there is, in fact, a breach of your rights.

Weigh up the pros and cons carefully. Don’t let your heart rule your head.

I know it’s difficult for you to be dispassionate about your problem, especially if going to work every day is a heavy chore. But you do need to have a good idea of the chances of success.

Friends and family mean well and don’t want to see you suffer.

So, before you do anything, get the best professional advice you can to give you a voice and ensure that your employment rights are upheld.

 

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