The Statutory Penalties for Breaches of Employment Law in Ireland

Are you aware of the range of penalties that are set down in legislation in Ireland for breaches of employment law?

There is a large number of statutes/acts dealing with all aspects of employment law in Ireland. These acts cover overnighting from unfair dismissal to working time to payment of wages to health and safety to annual leave and rest breaks, etc.

In addition to these penalties and employee can always go to the Civil Courts for common law claims such as breach of contract, personal injury, negligence, health and safety breaches, breach of constitutional rights, etc. That is another day’s work.

This piece is going to look at the penalties and redress for employees as set out in statute, that is, the various acts on the statute book.

Regardless of whether you are an employer or employee, you should find it useful.

Unfair Dismissal/Constructive Dismissal

The redress is set out in section 7, Unfair Dismissals Act, 1977, and in summary comprises

  1. Reinstatement or
  2. Reengagement or
  3. Compensation of up to 104 weeks’ remuneration in respect of the financial loss due to the dismissal.

If there is no financial loss an employee can be awarded 4 weeks’ remuneration.

Working Time/Rest Breaks

The penalties are set out in section 27, Organisation of Working Time Act, 1997:

  1. Require the employer to comply with the relevant provision of the act
  2. Compensation of up to 2 years’ remuneration.

Written Terms of Employment

Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be punished as set out in section 7 of the Terms of Employment (Information) Act, 1994.

The WRC adjudicator can order the employer to give the statement to the employee and can award up to 4 weeks’ remuneration by way of compensation.

Protected Disclosures/Whistleblowing

The Protected Disclosures Act, 2014 provides severe penalties in section 11 for dismissal of an employee for making a protected disclosure:

  • 260 weeks (5 years) remuneration

The employee can also bring a tort action for having suffered detriment as a result of making a protected disclosure, as set out in section 13, Protected Disclosures Act, 2014, and can seek an order from the Circuit Court as set out in section 11 of the act preventing dismissal prior to the determination of a claim for unfair dismissal.

Payment of Wages

Section 6, Payment of Wages act, 1991 sets out the penalties for breaches of the act. These include

  • Compensation of the net amount of the wages which would have been paid the previous week prior to the deduction/non payment or
  • Twice the net amount of wages that would have been paid to the employee in the week immediately preceding the deduction or payment

Minimum Notice

Compensation can be awarded pursuant to Minimum Notice and Terms of Employment Act, 1973: “may award to the employee compensation for any loss sustained by him by reason of the default of the employer.”

Agency Workers

Penalties for breach of Protection of Employees (Temporary Agency Work) Act 2012 are set out in schedule 2 of the Act. It states that the WRC can order rectification of whatever breach of the act is proved, including reengagement or reinstatement, and/or order compensation of up to 2 years’ remuneration be paid to the employee.

Adoptive Leave, Carer’s Leave, Parental Leave

Breach of the adoptive leave provisions of the Adoptive Leave Act, 1995 can see compensation of up to 20 weeks’ remuneration awarded to the employee, or the WRC making whatever directive order it feels is expedient in the circumstances.

Carer’s leave: a WRC adjudicator can award a grant of carer ’ s leave to the employee of such length to be taken at such time or times and in such manner as the adjudication officer may specify, and/or up to 26 weeks’ compensation.(Carer’s Leave Act, 2001).

Parental Leave and Force Majeure Leave:  an adjudicator can award (a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified, and/or compensation of up to 20 weeks’ remuneration.(Parental Leave Act, 1998).

Maternity leave: breaches of the employees entitlement can lead to an award of compensation of up to 20 weeks’ remuneration and or grant of the leave to which the employee is entitled.(Maternity Protection act, 1994).

Transfer of Undertakings

Complaints about breaches of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 can lead to compensation being awarded depending on which regulation has been breached.

The compensation can range from a maximum of 4 weeks’ remuneration to 2 years’ remuneration.

Part Time Workers

The Protection of Employees (Part-Time Work) Act, 2001 is the relevant act for part time workers.

It provides that the WRC adjudicator can require the employer to comply with the relevant provision and/or award 2 years’ remuneration to the employee.

Fixed Term Workers

The Protection of Employees (Fixed-Term Work) Act 2003 is the relevant act for fixed term workers. Section 14 of the revised act provides the WRC adjudicator can:

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

Redundancy

The Redundancy Payments Act, 1967, section 7 sets out the employee’s right to a redundancy payment. Section 39 allows you to appeal the amount you have been awarded.

The Protection of Employment Act, 1977 also obliges the employer to inform and consult with employees in a collective redundancy situation. Section 11 of the Act sets out the penalties for the employer’s failure to consult and notify: a fine of up to €5,000 on summary conviction in respect of a breach of section 9 or section 10.

Discrimination and Equality Based Claims

Breaches of the Employment Equality Act, 1998 can see redress being ordered pursuant to section 82 of the Employment Equality Act, 1998:

Various orders including for re-engagement, re-instatement or compensation of up to 2 years’ remuneration or €40,000, whichever is the greater.

€13,000 can be awarded in contravention of the law in relation to a discriminatory claim in relation to access to employment.

Equal Status Acts Breaches

Equal status breaches can be penalised in accordance with the Equal Status Act, 2000. This protects you in relation to discrimination in respect of the supply of goods or services.

The maximum amount that can be awarded is the amount of the District Court limit in civil cases in contract (€15,000).

Minimum Wages

The National Minimum Wage Act, 2000 protects employees in relation to minimum wage rates. Complaints can be dealt with under section 26 of the act. The adjudication officer can order that the shortfall be rectified and paid to the employee, and the employee can also be awarded reasonable costs in respect of bringing the claim.

The employer can also be prosecuted in the District Court for breaches of this minimum wage act.

Health and Safety

Breaches of the Safety Health and Welfare Act 2005 can see an adjudication officer awarding compensation of such amount as he feels equitable in the circumstances for breach of section 27 of the act, which protects employees from penalisation or dismissal for making a complaint in respect of health and safety in the workplace.

Conclusion

The list above is not definitive, but certainly covers the most common types of employment law claim that will be brought to the WRC (Workplace Relations Commission), or Labour Court. A WRC adjudicator has a wide range of discretion for breaches of any particular act, so the various acts referred to above set out the maximum awards possible.

The Essential Procedures for Pursuing Your Claim at the WRC (Workplace Relations Commission)

Since the introduction of the Workplace Relations Act, 2015 a new system of adjudicating employment complaints and disputes was introduced. The new system is a simpler one and did away with the Rights Commissioner and Employment Appeals Tribunal service and was replaced by a WRC Adjudication in the Workplace Relations Commission.

The Workplace Relations Commission Complaint Form

The starting point for your claim is the WRC complaint form. (You can access the form on this page.)

If you have a complaint about an employment or equality right, or have a grievance under industrial relations legislation you must use the Workplace Relations Commission Complaint Form. (I have previously written an article about how to bring a complaint to the Workplace Relations Commission).

The complaint must be made within 6 months of the breach of your right, although the Workplace Relations Commission Adjudicator can extend this time to 12 months where there is reasonable cause shown for the delay. What is reasonable cause will be decided by the Adjudicator.

The WRC will copy all correspondence between the parties who are called the “complainant” and “respondent”. The WRC have a mediation service which will be offered to the parties in suitable cases.

This may simply involve a phone call from the WRC to the parties to see if they can broker a deal between the parties. If the mediator/WRC employee is unsuccessful the case will go ahead for adjudication.

Statements from the Complainant

In a claim for constructive dismissal, or an equality based claim, the complainant must submit a clear statement setting out the details of the complaint.

In all other unfair dismissal cases the respondent is obliged to provide a clear statement within 21 days of the request from WRC.

If this procedure is not complied with the hearing will still go ahead but the adjudication officer may draw an inference(s) from the failure.

In an employment equality case the complainant must set out in detail the facts from which discrimination can be shown or inferred.

In a constructive dismissal case the complainant should set out as much detail as possible on the WRC complaint form, including any grievances raised, investigations carried out etc.

In other unfair dismissal cases the respondent must set out in his statement the facts leading to the dismissal, including any disciplinary hearings, appeals, legal points etc.

Other Employment and Equality Cases

If a respondent intends relying on statutory records in his defence these should be sent to the WRC prior to the hearing. Any other points the respondent wishes to make-for example in relation to a legal point or the wrong employer being named-should be raised within 21 days of receipt of the complaint from the WRC.

WRC Hearing

Both parties will then be contacted with a date for the hearing, and asked to advise of any special requirements they have, for example, an interpreter. A postponement will only be given in exceptional circumstances, and the request must be made in writing to the WRC with an explanation. Consent of the other party would be useful, too.

It is up to the parties to ensure that the WRC has all relevant documentation prior to the hearing and that witnesses, if any, are available for the day.

Conduct of the Hearing

My experience of the way the hearing is held is that it can vary, depending on the particular WRC adjudicator.

Nevertheless, the adjudicator will indicate how he/she wants to conduct it and he/she will

  • Ask questions of any party or witness
  • Allow each party to question the other party and any witness
  • Ensure fair procedures and natural justice

The WRC hearing is in private, so is not open to the public or media.

The written decision is supposed to issue within 28 days of the hearing with the parties and witnesses anonymised.

Update August, 2017

The WRC have issued, at the end of August, 2017, updated guidelines about the conduct of WRC hearings.

You can read these guidelines here.

Appeal and Enforcement

The decision can be appealed within 42 days to the Labour Court and the decision can be enforced through the District Court after 42 days if no appeal is lodged.

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Timing is Critical for Employees Seeking to Stand Up For Their Employment Rights

timing

*Sigh*

Yes, I admit it. It’s trite and glib and a cliché to say that “timing is everything”.

You’ve heard it before, and from all types of people, in a variety of circumstances.

But it’s true.

Because the veracity of the statement was never clearer to me than when 3 employees came to me for help in the last 12 months.

Let me explain.

“You can keep your job-I’m not putting up with this”

Let’s call him Mick.

Mick was employed in the same job for nearly 20 years. A few years ago, the business changed hands and Mick had a new boss.

From day one, there were difficulties in their relationship, with regular disputes between them about minor things.

Eventually Mick felt the cumulative build up and drip, drip nature of disputes and niggles becoming too much.

He quit his job. After nearly 20 years.

Mick brought a claim for constructive dismissal.

However, it would have been a much stronger case if he hung on a little longer. Because he should have exhausted all internal procedures first, before quitting, even if it was a futile exercise.

This would have strengthened his case considerably.

If he came to me before she resigned, this is what I would have told him: to exhaust all avenues in the workplace and position himself as an employee who behaved reasonably and simply wanted to sort out the difficulties.

Remember, he walked away from any benefits that would have flown from his 20 year’s service, for example a substantial redundancy payment, if this arose in the future.

However, his timing was poor-he should have got advice before quitting, not after.

He settled his claim, but would have been negotiating from a far stronger position if he had obtained advice when he was still in the job.

Settlement/Termination Agreement

Jackie was also in the job a long, long time. She had a number of grievances and issues with the employer.

To put it simply, she believed the employer owed her a considerable amount of money under various headings. She was considering bringing a claim against her employer, having tried to resolve her issues internally.

Jackie came to me and I advised her about the various causes of action that may have been open to her.

I didn’t hear anything further from her for a while.

Then she returned and told me she had left the job and the employer paid her off. Jackie now wanted to bring a case against her former employer and was wondering about the strength of her case, and what it might be worth.

There was one major problem: when Jackie left the job, the employer, when paying her off, had Jackie sign a compromise/settlement agreement.

(I have written extensively before about waivers/settlement agreements/negotiated exits from the workplace. Take a look at “Avoid this costly mistake in your settlement agreement” and “The Minimalist guide to the tax treatment of employment law awards and settlements”.)

A fundamental part of all these agreements is the undertaking by the employee not to bring any claims or legal cases arising from the employment. Basically, the employer buys this peace of mind by paying the employee money and settling her existing claim, and any future ones.

So, when Jackie came to me I had to tell her that she could not bring any claim because of the agreement she had signed.

The timing problem here was that she should have ensured to obtain legal advice about what she was being asked to sign before she signed it, not months later when it was too late.

WRC had no jurisdiction

Jasminka was a Croatian nanny. She had a number of complaints arising from her employment including not getting rest breaks, excessively long working weeks, being on call and not getting paid, and not receiving the minimum wage.

By the time she came to me, it was too late. She was out of time to submit her complaints, only by a few weeks, but out of time nevertheless.

We submitted the claims on her behalf, but ultimately the WRC decided she was out of time (over 6 months), and there were no exceptional circumstances to justify an extension of time.

So, the WRC decided it had no jurisdiction to hear her claims.

 

These 3 cases illustrate clearly that, yes, timing can be absolutely critical for employees seeking to redress wrongs and stand up for their employment rights.

3 Critical Things to Consider Before Bringing an Employment Claim to the Workplace Relations Commission

workplace relations commission

Feeling hard done by?

Are you being treated unfairly or unlawfully?

Thinking about bringing a claim to the WRC?

There are 3 important things you need to think about before lodging your claim.

Are you interested in knowing what they are?

Let’s take a look.

1.      The Chances of Success

The most important thing you need to think about is how strong your claim is, and what is the likelihood of winning.

It can be a stressful enough course of action to embark upon, and many people try to avoid conflict at all costs. Throw into the mix the fact that your employer or former employer will be there to defend your claim and perhaps give a different version of events from yours, and it will deter many people from bringing the claim.

This should not be enough to prevent you, although this is entirely a decision for you.

But what you do need is an objective, professional assessment of your case before making any difficult decision to plough ahead for put the matter behind you and forget about it.

2.      The Cost of Bringing your Claim

When you bring a clam to the WRC or Labour Court each party pays their own costs. This is unlike going to Court where the loser pays the winning side’s costs along with his own: “winner takes all”.

You need to factor in this cost if you are getting professional legal representation, which is strongly recommended.

The legal fees will take into account the complexity of your case, the amount of time it will take to prepare for the hearing, the amount of time for the hearing itself-which will be heavily influenced by the number of witnesses-, and perhaps an appeal.

You need to weigh up this cost, and the potential payoff.

 

3.      The Potential Payoff

There is a wide range of potential claims you can bring to the WRC, with widely varying compensation and redress if you are successful.

For an unfair dismissal the maximum you can be awarded is 2 years’ salary. However, if your claim is based on the employer’s failure to give you a written contract the maximum that can be awarded is 4 weeks’ remuneration.

So, you need to weigh up this cost/benefit analysis carefully.

Conclusion

Leaving aside the factors discussed above there is another one: the psychological benefit and relief of getting to put your side of the story and stand up for yourself and your rights. For many people this benefit outweighs any financial considerations.

Ultimately, the decision is yours.

All The Claims That Can Be Brought to the Workplace Relations Commission (WRC)

workplace relations commission

Are you an employer? Employee?

Are you confused about the employment related claims that can be brought to the WRC?

If an employee wants to bring an employment related complaint or claim to the Workplace Relations Commission (WRC), he/she must fill out a standard form available on their website.

There are 15 options for complaint on their complaint form (although the complaint form says there are 16).

We have recently written articles about each one of those complaints. Here they are: