Digest of Decisions 2008

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					Rights Commissioner Service



 Digest of Decisions
        2008
             Digest of Rights Commissioner Decisions/Recommendations

Introduction


This information booklet is intended to provide users of the Rights Commissioners
Service of the LRC with additional background information on current developments
in the Service. There has been a significant increase in the levels of referrals to the
Service over the last number of years. The level of referrals is expected to exceed
10,000 in 2008.


The Commission is committed to arranging as rapid as possible scheduling of cases
by claimants. In order to achieve this objective the collaboration and assistance of
employees, employers and their representative bodies/unions, legal representatives
and advocacy organisations with the secretariat of the Service in the arrangement of
hearings is essential.


Due to the considerable pressure on the Commission to schedule cases, it is necessary
for the Commission to decide the dates and venues of hearings, taking into account
the geographic location of parties involved. Under some employment legislation there
is a specific time period allowed for an employer to object to the case being heard by
a Rights Commissioner. This in turn can add to the period of delay for the hearing of
cases, pending a response from the employer concerned.


The Commission requests that all parties involved in cases before the Commission
would assist the Secretariat and the Rights Commissioners in processing individual
cases, by forwarding the following information:
        i)    Completing the appropriate claim forms in full and in clear and
              legible script (unfortunately some claimants names can be unclear
              and/or the employers legal trading name is incorrect)
       ii)    The inclusion of relevant PPS numbers, Employer registration
              numbers, and copies of P45/P60 Certificates would be helpful
      iii)    Informing the Commission in a timely fashion you do not intend to
              attend.
      iv)     Bringing all appropriate documentation to the hearing.



                                            1
The Commission operates currently an adjournment procedure based on the following
criteria:
                             Adjournment Criteria

     1. Requests for an adjournment of a scheduled hearing date arising from
        holidays, business trips, conflicts with other planned commitments should
        be made to the LRC within 10 working days of the issue of the notification
        letter for a hearing
     2. Requests for adjournments due to exceptional circumstances-
        while not exhaustive, the following will not be considered by the Rights
        Commissioner Service to be exceptional circumstances:

             Annual Leave
             Business trips
             Business meetings

     3. Staff of the Rights Commissioner Service reserve the right to process
        requests for adjournments in all cases
     4. The decision of the officer adjudicating a request for an adjournment is
        final and not subject to review of any kind
     5. The Service will seek to identify frequent users, who rely on adjournments
        to avoid cases/ suit themselves with re-scheduled dates, and encourage
        them to operate the system genuinely



The Commission wishes to ensure a user-friendly and customer focuses service is
maintained, and is responsive to any suggestions which will accommodate a more
efficient and effective service.

Yours sincerely,




____________
Kieran Mulvey
Chief Executive

October 2008




                                         2
Key Time Limits/Operational Procedures

Referral Timeframes

                       Act                        Timeframe       Additional*      Total
Adoptive Leave Act, 1995                          6 Months        6 Months         12 Months
Carers Leave Act, 2001                            6 Months        6 Months         12 Months
Competition Act, 2002                             12 Months       6 Months         18 Months
Consumer Protection Act, 2006                     12 Months       6 Months         18 Months
Employment Permits Act, 2006                      6 Months        6 Months         12 Months
Health Act, 2007                                  12 Months       6 Months         18 Months
Industrial Relations Acts, 1969-1990              None
Industrial Relations (Miscellaneous Provisions)   6 Months        6 Months         12 Months
Act, 2004
Maternity Protection Acts, 1994-2004              6 Months        6 Months         12 Months
National Minimum Wage Act, 2000                   6 Months        6 Months         12 Months
Organisation of Working Time Act, 1997            6 Months        12 Months        18 Months
Parental Leave Act, 1998                          6 Months        -                6 Months
Payment of Wages Act, 1991                        6 Months        6 Months         12 Months
Protection of Employees (Fixed-Term Work)         6 Months        12 Months        18 Months
Act, 2003
Protection of Employees (Part – Time Work)        6 Months        12 Months        18 Months
Act, 2001
Protections for Persons Reporting Child Abuse     12 Months       6 Months         18 Months
Act, 1998
Protection of Young Persons (Employment) Act,     6 Months        6 Months         12 Months
1996
Terms of Employment (Information) Act, 1994       6 Months        -                6 Months
Safety, Health & Welfare at Work Act, 2005        6 Months        6 Months         12 Months
Unfair Dismissals Acts, 1977-1993                 6 Months        6 Months         12 Months
Protection of Employment Regulations, 2000        6 Months        6 Months         12 Months
Transfer of Undertakings Regulations, 2003        6 Months        6 Months         12 Months

*Most referrals must be referred within 6 months of the contravention, however,
additional time may be allowed due to exceptional circumstances or reasonable cause,
depending on the legislation.




                                         3
Rights Commissioner appeal routes and time limits for lodging appeals:


                 EAT               Time         Labour Court            Time
                                   Limit                                Limit
         Adoptive Leave Act,       4 wks   Industrial Relations Acts,   6 wks
         1995                              1969-1990
         Carers Leave Act,         4 wks   Industrial Relations         6 wks
         2001                              (Miscellaneous Provisions)
                                           Act, 2004
         Competition Act, 2002     6 wks   National Minimum Wage        6 wks
                                           Act, 2000
         Maternity Protection      4 wks   Organisation of Working      6 wks
         Act, 1994                         Time Act, 1997
         Parental Leave Act,       4 wks   Protection of Employees      6 wks
         1998                              (Fixed-Term Work) Act,
                                           2003
         Payment of Wages          6 wks   Protection of Employees      6 wks
         Act, 1991                         (Part – Time Work) Act,
                                           2001
         Protection of Young       6 wks   Safety, Health and Welfare   6 wks
         Persons (Employment)              at Work Act, 2005
         Act, 1996
         Protections for Persons   6 wks   Employment Permits Act,      6 wks
         Reporting Child Abuse             2006
         Act, 1998
         Terms of Employment       6 wks   Health Act, 2007             6 wks
         (Information) Act,
         1994
         Unfair Dismissals         6 wks
         Acts, 1977-1993
         Transfer                  6 wks
         of Undertakings
         (Amendment)
         Regulations 2003
         Protection of             6 wks
         Employment
         Regulations, 2000
         Consumer Protection       6 wks
         Act, 2007




                                           4
HEARING TIMELINE:       The timelines from receipt of referral to issuing of
Recommendations/Decisions are dependent on many factors, some of which are
illustrated in the chronological chart below.


                                            Claimant: 3 claims referred


January
                                        Unfair            Industrial       Payment of
                                        Dismissal         Relations        Wages


                                        3 Week                3 Week
                                        Objection             Objection
                                        Letter To             Letter to
February                                Employer              Employer


                                        Objection?            Objection?
                                        Yes                   No


March
                                        Notify Claimant of
                                        Objection (No
                                        Further
                                        Involvement)                Diary Scheduled

                                                            Notification for Hearing
                                                            sent to all parties
April




                                     Hearing Date
May



                                     Adjournment Sought by
                                     Employer/Employee


June
                                     Hearing Takes Place




                                        5
Background

The Rights Commissioner Service

The Rights Commissioner Service was established by the Industrial Relations Act
1969 as a independent investigation service for many first instance employment
disputes, relating to individuals or small groups of workers. The shift away from
collective bargaining process to a rights-based model has been a significant factor in
the growth of the Service in recent years. Currently, the Rights Commissioner Service
is an important aspect of the Irish employment dispute resolution system.

At its commencement, the service was expected to perform a problem-solving role by
helping to resolve small-scale disputes in a non-legalistic manner. The rationale for
creating the service was to ensure that relatively minor employment disputes were
resolved without impacting on the wider collective bargaining industrial relations,
causing unnecessary conflict between employers, trade unions & employees.

In the period since its establishment, however, the role, function and indeed
importance of the Rights Commissioner Service within the public dispute resolution
architecture has changed significantly. Although Rights Commissioners have retained
their function of providing a non-adversarial problem solving approach to dispute
resolution within the industrial disputes arena, they have also gradually acquired a
more encompassing quasi-judicial role in respect of the adjudication on employment
rights.

Rights Commissioners

There are currently 15 Rights Commissioners (listed below), and Rights
Commissioners operate on a nationwide basis with cases being heard in every county.

             Tony Bregazzi                               Mark McGrath
            Joan Carmichael                               Peter O’Brien
           Gaye Cunningham                               Jim O’Connell
           Rosaleen Glackin                               Emer O’Shea
             Eugene Hanly                                  Sean Reilly
              Mick Hayes                                 Michael Rooney
             David Iredale                                John Tierney
              John Walsh

Nominations for appointment as Rights Commissioners, are submitted to the Minister
for Enterprise, Trade and Employment, by the Labour Relations Commission (LRC),
following consultation by the Board of the LRC with the Social Partners
(IBEC/ICTU). The nominees are practitioners in the fields of human resources,
industrial relations and employment rights. Rights Commissioners are independent
office-holders, appointed by the Minister for Enterprise, Trade and Employment.




                                          6
The Rights Commissioner Service

The Rights Commissioner Service, headed by Director Eddie Nolan, provides
administrative support to the Commissioners.
The Service has seen a significant increase in its volume of work in recent years and
the number of referrals to the Service continues to increase.

Volume of Work

Activity in the Rights Commissioner Service continues to increase. Referrals received
to the end of June have increased by 20.5% compared with the same period in 2007.
Total referrals received thus far stand at 5,143 compared to 4,267 in 2007. The
Service is likely to receive over 10,000 referrals in 2008, compared to 9,077 in 2007.
A graph showing the number of referrals received in the years 2000 to 2007 is shown
below.



   10000                                                           9077
    9000
    8000                                                   7179

    7000                    5692                    5598
    6000                            4737    4749
    5000            4156
    4000     3206
    3000
    2000
    1000
        0
            2000    2001   2002    2003    2004    2005    2006   2007




                                           7
Legislation
Rights Commissioners operate under a considerable body of employment legislation,
as listed below:
      Adoptive Leave Act 1995
      Carers Leave Act 2001
      Competition Act 2002
      Consumer Protection Act 2006
      Employment Permits Act 2007
      European Communities (Protection of Employment) Regulations 2000
      European Communities (Safeguarding of Employees Rights on Transfer of
        Undertakings) (Amendment) Regulations 2003
      Employees (Provision of Information & Consultation) Act 2006
      Employment Permits Act 2006
      European Communities (Organisation of Working Time) (Mobile Staff in
        Civil Aviation) Regulations 2006
      European Communities (European Public Limited-Liability Company)
        (Employees Involvement) Regulations 2006
      Health Act 2007
      Industrial Relations Act 1946 - 2004
      Maternity Protection Act 1994
      National Minimum Wage Act 2000
      Organisation of Working Time Act 1997
      Parental Leave Act 1998
      Payment of Wages Act 1991
      Protection of Employees (Fixed-Term Work) Act 2003
      Protection of Employees (Part – Time Work) Act 2001
      Protection of Young Persons (Employment) Act 1996
      Protections for Persons Reporting Child Abuse Act 1998
      Safety, Health and Welfare at Work Act 2005
      The Protection of Employment (Exceptional Collective Redundancies and
        Related Matters) Act 2007
      Terms of Employment (Information) Act 1994
      Unfair Dismissals Act 1977-2007




                                        8
However, most claims are dealt with under 6 main Acts, as depicted in the graph
below (2007 figures):


                        Safety, Health
                                       Other Acts
                        and Welfare at
                                          7%
                        Work Act 2005
                              4%                     Payment of
                     Terms of
                                                   Wages Act 1991
                   Employment
                                                          34%
                 Information Act
                   1994 - 2001                           Industrial
                       14%                           Relations Acts
                                                        1969-1990
                     Unfair Dismissals                     13%
                      Acts 1977-2005    Organisation of
                            11%        Working Time Act
                                             1997
                                              17%



The timelines from receipt of referral to issuing of Recommendations/Decisions are
dependent on many factors, some of which are illustrated in the hearing timeline chart
featured earlier.




                                           9
As the Decisions of Rights Commissioners are confidential to the parties involved,
there is no body of precedent to which practitioners can refer when preparing for
Rights Commissioner hearings. This Digest of Decisions should provide some
assistance in this regard.


Decisions/Recommendations

Organisation of Working Time Act.

The Act transposes into Irish Law the European Council Directive on certain aspects
of working time. The Directive was adopted as a Health and Safety measure on the
basis of Article 118A of the EC Treaty. The Act can be viewed therefore as a piece of
Health and Safety legislation designed to protect workers against excessive hours and
to provide them with adequate breaks, rest periods, and holidays.

This Act sets out the legal minimum entitlement of workers in respect of daily and
weekly rest periods; maximum permitted weekly working hours; annual and public
holiday entitlement and how they should be calculated and paid; payment for Sunday
work.

In addition, the Act requires employers to notify employees of any changes to their
working hours or of any requirement to work additional hours.
Regulations made under the Act require employers to keep records of the
Daily/Weekly hours worked by employees and the holidays they have taken.
In the absence of such records the onus of proving compliance with the provisions of
the Act rests with the employer.

Any person who considers that they are not receiving their entitlements or are not
being treated in accordance with the requirements of the Act may make a complaint to
a Rights Commissioner. A complaint must be made within 6 months from the date of
the contravention that is the subject of the complaint. A Rights Commissioner may
extend that period by up to a further 12 months if he/she is satisfied that there is
‘Reasonable Cause’ for the failure to make the complaint within the 6 month time
limit.

For an explanation of what would be considered ‘Reasonable Cause’ see Labour
Court Determination No. DWT 0426.

In 2007, there were 1,541 complaints under this legislation dealt with by Rights
Commissioners. An appeal against a Decision of a Rights Commissioner is made to
the Labour Court. The appeal must be made within 6 weeks of the decision being
issued. For more details on appeals, see the website of the Labour Court.

The following is a sample of some Decisions made by Rights Commissioners on
complaints referred under the Organisation of Working Time Act.




                                         10
Organisation of Working Time Act, 1997.


1.     Case Ref:      R057188/WT

The claimant worked for the respondent from January 2006 until August 2007. She
went on maternity leave in March 2007 and was due to return to work in October
2007. In August she sent a letter of resignation to the company and in September the
company responded informing her that, as she had not fulfilled her contractual
obligation to give three months notice, the company would not pay the holiday pay
due.
The claimant claimed that she was entitled to payment for 10 days holidays and 5
Public Holidays.
The respondent argued that as a small company the suddenness of the resignation had
created problems for them and it was difficult to get a replacement.

Decision

The Rights Commissioner upheld the complaint that the respondent was in breach of
Sections 19(1) and 21(1) of the Act and required the respondent to pay the claimant
€1,440 for ten days Holidays; €720 for 5 Public Holidays and €4,000 compensation
for the breach of the Act. The total award to the claimant was €6,160.


2.     Case Ref:      R052305/WT

The claimant was employed by the respondent between June 2006 and January 2007.
He submitted that despite a request for details of his working time record, none were
received. He complained that he did not receive appropriate rest breaks, and that he
was required to work in excess of 48 hours per week and was not properly notified of
the requirement to work overtime.
The respondent stated that it is a small start up business but that the claimant rarely
worked beyond 5pm.and only did o/t on a couple of occasions, he also got his
entitlement to breaks.

Decision

The Rights Commissioner upheld the complaint on the grounds that where there is a
conflict of evidence the onus is on the employer to provide the records to sustain his
case. In the absence of records as required by the Act the evidence of the claimant
must be accepted. The claimant was awarded €4,000 in compensation.




                                          11
3.     Case Ref:      R051365/WT

The claimant was employed by the respondent from December 2005 until January
2007.She complained that she received no paid holidays during that time.
The respondent acknowledged that the claimant was due some holiday pay but had no
records and so could not provide precise details.

Decision

The Rights Commissioner upheld the complaint and awarded the claimant €1,377 in
compensation.


4.     Case Ref:      R054555/WT

The claimant was employed by a Recruitment Agency to work for a third party from
October 2005 until February 2006. His employment terminated with the agency when
he got a permanent job with the third party.

He complained that when his employment terminated he was owed 13.8 hours holiday
pay.

Decision

The complaint was received in the Rights Commissioner Service in July 2007.
The Rights Commissioner decided that as it was received after the expiration of the
period of six months of the date of the contravention it was out of time and therefore
failed.


5.     Case Ref:      R05574/WT

The claimant was employed by the respondent from May 2004 until February 2007.
The claimant sought compensation for the failure of the respondent to provide him
with appropriate rest breaks, failure to give him adequate notice of overtime, and
requiring him to work in excess of 48 hours per week.

The respondent submitted that the claimant received his statutory breaks and as he
generally worked the same hours each week he was aware of the overtime
requirements. He acknowledged that the hours of work exceeded 48 per week by a
small margin but said this was at the demand of the claimant.

Decision

The Rights Commissioner disallowed the complaint regarding lack of notice for daily
overtime but found the complaint regarding working in excess of 48 hours per week
to be well founded. In his decision he commented on the absence of proper records as
required by Section 12 of the Act.

He awarded the claimant €2,500 in compensation.


                                          12
Protection of Employees (Fixed-Term Work) Act, 2003

The Protection of Employees (Fixed-Term Work) Act, 2003 (known as the Fixed-
Term Act), provides for the implementation of EU Directive No. 1999/70/EC of 18th
June 1999, concerning Fixed-Term Workers/Temporary Workers. The Act came into
operation on 14th July 2003.

The purpose of the European Directive/Act is to improve the quality of fixed-term
work by ensuring the application of the principal of non-discrimination and to
establish a framework to prevent abuse arising from the use of successive fixed term
employment contracts.

The Act provides that a fixed-term employee may not be treated in a less favourable
manner than a comparable permanent employee, unless such treatment can be
justified on objective grounds.

The Act also provides that:

A fixed-term/temporary employee who on or after 14th July 2003 completes or has
completed his or her third year of continuous service with the employer may only
have their fixed-term contract renewed on one more occasion and for a period not
exceeding one year.

In the case of a fixed-term/temporary employee whose first fixed-term contract is
subsequent to 14th July 2003 he or she may be employed by his or her employer on
two or more continuous fixed-term contracts subject to the combined duration of such
contracts not exceeding 4 years.

The Act permits exceptions to the above in cases where objective grounds exist and
fixed-term contracts may be renewed outside the period of times referred to above in
such cases.

The Act defines ‘objective grounds’.

The Act also provides that employers notify fixed term employees in writing of the
objective condition determining the contract whether it is (a) arriving at a specific
date, (b) completing a specific task, or (c) the occurrence of a specific event. In
addition, if an employer proposes to renew a fixed-term contract the employer must
notify the fixed-term employee in writing of the objective grounds justifying the
renewal of the fixed-term contract and the failure to offer a contract of indefinite
duration.

The Act prohibits penalisation of employees by an employer for invoking any right
provided for in the Act and an employer is prohibited from dismissing an employee if
the dismissal is wholly or partly for or connected with the purpose of the avoidance of
a fixed-term contract being deemed to be a contract of indefinite duration.
Complaints to a Rights Commissioner must be made within 6 months of the
contravention complained of .



                                          13
If the Rights Commissioner is satisfied that failure to make the complaint within the
time limit is due to reasonable cause he/she may extend it by up to a further 12
months.

An appeal against a Decision of a Rights Commissioner is made to the Labour Court
and any such appeal must be made within 6 weeks of the Decision.

The Act is quite technical and it is strongly recommended that it is consulted before
initiating a complaint. A number of Rights Commissioner’s Decisions have been
appealed to the Labour Court and the Labour Court website outlines 36
Determinations of the Court on these appeals. In turn a number of these
Determinations have been appealed to the High Court. The Labour Court has
addressed several questions to the European Court of Justice arising out of an appeal
made to it from a Decision of a Rights Commissioner.

The European Court issued its judgement on the questions addressed to it by the
Labour Court on the 15th. April 2008 and ruled inter alia that the Labour Court and
Rights Commissioners had jurisdiction to apply the Doctrine of Direct Effect.
This doctrine means that the period between the coming into effect of a Directive and
its transposition into Irish law, where the complaint is against the State or an
emanation of the State, may be considered. The full judgement of the Court should be
consulted for a more detailed analysis of the questions asked and the answers given.

The Reference No. of the European Court judgement is Case C’268/06.


A considerable amount of precedental guidance can be obtained from Labour Court
cases concerning appeals of Fixed Term cases. Such cases are listed below and are
available via the Labour Court website – www.labourcourt.ie.




1   OUR LADY’S CHILDREN’S HOSPITAL       Appeal Against Rights
                                         Commissioner’s Decision
    CRUMLIN (HSE) – and – Dr Mohammad Wisal
    Khan (O’Mara Geraghty McCourt)       Ft41881/06/Mr
                                         Case FTD0813 issued on
                                         28/07/2008
2   CLARE COUNTY COUNCIL (LGMSB) – and – Appeal Against Rights
    Rionach Power (IMPACT)               Commissioner’s Decision
                                         Ft47999/06/Mr
                                         Case FTD0812 issued on
                                         04/06/2008
3   BOARD OF MANAGEMENT NORTH            Appeal Against Rights
    DUBLIN MUSLIM NATIONAL SCHOOL –      Commissioner’s Decision R-
    and – Colm Naughton (INTO)           048333-Ft-06/Jt
                                         Case FTD0811 issued on
                                         21/05/2008


                                          14
4   HSE (O’Mara Geraghty McCourt solicitors) –      Appeal Of Rights
    and – Muhammed Ghulam (Michael J Byrne          Commissioner’s Decision R-
    Solicitors)                                     041763-Ft-06/Jh
                                                    Case FTD089 issued on
                                                    12/05/2008
5   DUBLIN PORT COMPANY (Arthour Cox                Appeal Against Rights
    Solicitors) – and – Stephen McCraith & Robert   Commissioner’s Decisions
    Kieran (Eugene F Collins Solicitors)            R-048152-Ft-07/Pob & R-
                                                    048060-Ft-06/Pob
                                                    Case FTD0810 issued on
                                                    12/05/2008
6   CENTRAL STATISTICS OFFICE (CSO) – and           Appeal Of a Rights
    – Martin Murray                                 Commissioner’s Decision R-
                                                    043321-Ft-06/Jc
                                                    Case FTD088 issued on
                                                    26/03/2008
7   CENTRAL STATISTICS OFFICE (CSO) – and           Appeal Of a Rights
    – Anthony Dempsey                               Commissioner’s Decision R-
                                                    043317-Ft-06/Jc
                                                    Case FTD087 issued on
                                                    26/03/2008
8   CENTRAL STATISTICS OFFICE (CSO) – and           Appeal Of a Rights
    – Michael Dalton                                Commissioner’s Decision R-
                                                    043308-Ft-06/Jc
                                                    Case FTD086 issued on
                                                    26/03/2008
9   DUBLIN AIRPORT AUTHORITY –                      Appeal Against Rights
    SHANNON AIRPORT (Arthur Cox Solicitors) –       Commissioner’s Decision
    and – A Worker (SIPTU)                          Ft52228/07/Mr
                                                    Case FTD085 issued on
                                                    20/03/2008
10 DUBLIN AIRPORT AUTHORITY –                       Appeal Against Rights
   SHANNON AIRPORT (Arthur Cox Solicitors) –        Commissioner’s Decision
   and – Brendan Keehan (SIPTU)                     Ft52229/07/Mr
                                                    Case FTD084 issued on
                                                    20/03/2008
11 HARBOUR HOUSE LTD (IBEC) – and –                 Appeal Against Rights
   Vytautas Jurksa                                  Commissioner’s Decision R-
                                                    047144-Ft-06/Tb
                                                    Case FTD083 issued on
                                                    13/03/2008
12 HEALTH SERVICE EXECUTIVE – SOUTH –               Appeal Against Rights
   and – Dr Rahim Arefi (Irish Medical              Commissioner’s Decision
   Organisation)                                    Ft45379/06/Mr
                                                    Case FTD081 issued on
                                                    28/02/2008




                                       15
13 MARIAN COLLEGE (Arthur O’Hagan                    Appeal Against Rights
   Solicitors) – and - Aisling Russell (ASTI)        Commissioner’s Decision R-
                                                     038859-Ft-05/Mmg
                                                     Case FTD082 issued on
                                                     26/02/2008
14   HSE – and – Health Service Staff Panel          Alleged breach of the
                                                     Information & Consultative
                                                     Act
                                                     Case RIC081 issued on
                                                     15/02/2008
15   UNIVERSITY OF LIMERICK – and – Noreen           Appeal Against Rights
     Coveney O’Beirne                                Commissioner’s Decision
                                                     Ft43951/06/Mr
                                                     Case FTD075 issued on
                                                     07/01/2008
16   ESB NETWORKS (ESB Legal Services) – and – Appeal Against Rights
     Group of Workers (Padraig J. O’Connell          Commissioner’s Decision R-
     Solicitors)                                     034407 – 033045 – 033002 –
                                                     032491 – 032634 – 032636 –
                                                     032843 – 032716 – 032286-
                                                     Ft-05
                                                     Case FTD074 issued on
                                                     07/03/2007
17   IRISH PRISON SERVICE (Chief State Solicitor) Appeal Against Rights
     – and – Donal Morris (Francis Watters)          Commissioner’s Decision R-
                                                     039683-Ft-06/Jh
                                                     Case FTD073 issued on
                                                     05/03/2007
18   UNIVERSITY COLLEGE HOSPITAL (William Appeal Against Rights
     B Glynn) – and – Masud Awan (IMO)               Commissioner’s Decision
                                                     Case FTD072 issued on
                                                     05/02/2007
19   DEPARTMENT OF FOREIGN AFFAIRS (The              Appeal Against Rights
     Chief State Solicitor) – and – Group of Workers Commissioner’s Decision R-
     (CPSU)                                          035256-Ft-05/Jh
                                                     Case FTD071 issued on
                                                     19/01/2007
20   H.S.E. WEST (HSE West) – H.S.E. Employees       Appeal Against Rights
     (SIPTU)                                         Commissioner’s Decision R-
                                                     035289-Ft-05/Tb
                                                     Case FTD0611 issued on
                                                     16/01/2007
21   OFFICE OF PUBLIC WORKS – and – DAVID            Appeal Against Rights
     O’BRIEN (SIPTU)                                 Commissioner’s Decision
                                                     Ft31571/04/Mr
                                                     Case FTD069 issued on
                                                     04/10/2006




                                       16
22 OFFICE OF PUBLIC WORKS – and –               Appeal Against Rights
   PATRICK GREANEY (SIPTU)                      Commissioner’s Decision
                                                Ft31571/04/Mr
                                                Case FTD0610 issued on
                                                04/10/2006
23   SOUTH TIPPERARY COUNTY COUNCIL             Appeal Against Rights
     (Human Resources & Local Government        Commissioner’s Decision
     Management Services Board) – and – Richard Ft21438/04/Mr
     O’Regan (IMPACT)                           Case FTD068 issued on
                                                03/10/2008
24   SUNDAY WORLD NEWSPAPERS LTD                Appeal Against Rights
     (KIERAN KELLY SOLICITOR) – and STEVEN Commissioner’s Decision R-
     KINSELLA (TEEU)                            035879-Ft-05/Di
                                                Case FTD066 issued on
                                                24/07/2006
25   GALWAY CITY COUNCIL – and – Mike           Appeal Against Rights
     Mackey (Frank Daly)                        Commissioner’s Decision R-
                                                0037021-Ft-05/Jh
                                                Case FTD065 issued on
                                                23/06/2006
26   HEALTH SERVICE EXECUTIVE (WILLIAM          Appeal Against Rights
     B. GLYNN SOLICITORS) – AND –               Commissioner’s Decision
     CHALIKONDA V.R. PRASAD (IRISH              Ft18182/04/Jc – Double
     MEDICAL ORGANISATION)                      Appeal
                                                Case FTD062 issued on
                                                07/04/2008
27   HSE NORTH EASTERN AREA – and – DR          Appeal Of Rights
     MOHAMMAD J. KHAN                           Commissioner’s Decision R-
                                                02571-Ft-04/Jh
                                                Case FTD064 issued on
                                                06/04/2006
28   STATE LABORATORY (THE CHIEF STATE          Appeal Against Rights
     SOLICITORS OFFICE) –and – UNA MC           Commissioner’s Decision R-
     ARDLE (IMPACT)                             032242-Ft-05/Jh
                                                Case FTD063 issued on
                                                06/04/2006
29   PRUDENTIAL INTERNATIONAL                   Appeal Against Rights
     ASSURANCE – and – MICHAEL O’REILLY         Commissioner’s Decision R-
                                                033251-Ft-05/Di
                                                Case FTD061 issued on
                                                01/02/2006
30   ESB NETWORKS – and – A Worker (ATGWU) Appeal Of Rights
                                                Commissioner’s Decision
                                                Ft20974/04/Tb
                                                Case FTD058 issued on
                                                04/10/2005




                                    17
31 CORK COUNTY COUNCIL – and – P.J.      Appeal Against Rights
   KENNY / HILARY NEVILLE / ROSE         Commissioner’s Decision
   QUINLAN / MARY MURPHY (IMPACT)        Ft19517, Ft 21310, Ft
                                         21311, Ft21312/04/Di
                                         Case FTD057 issued on
                                         24/08/2005
32 DEPARTMENT OF FOREIGN AFFAIRS – and   Appeal Against Rights
   – A Worker                            Commissioner’s Decision
                                         Ft18670/04/Jh
                                         Case FTD056 issued on
                                         15/08/2005
33 SCOIL IOSAGAIN – and – MARTIN         Appeal Against Rights
   HENDERSON                             Commissioner’s Decision
                                         Ft17376/03/Tb
                                         Case FTD055 issued on
                                         20/04/2008
34 AER LINGUS (ARTHOUR COX               Appeal Of Rights
   SOLICITORS) – and – BRIDGET BYRNE     Commissioners Decision
   TIMMONS (IMPACT)                      (Fixed Term Work) Act
                                         2003 Ft18139/04/Tb
                                         (Double Appeal)
                                         Case FTD054 issued on
                                         11/04/2005
35 NORTHERN AREA HEALTH BOARD – and –    Appeal Against Rights
   CHRISTINA HUGHES (RICHARD BLACK       Commissioner’s Decision
   SOLICITORS)                           Ft`21257/04/Di
                                         Case FTD053 issued on
                                         15/03/2005
36 IRISH RAIL – and – MALCOLM STEAD      Appeal Against Rights
   (TSSA)                                Commissioner’s Decision
                                         Ft17985/03
                                         Case FTD052 issued on
                                         02/03/2005
37 EIRCOM – and – ORLA MCDERMOT          Appeal Against Rights
   (IMPACT)                              Commissioner’s Decision
                                         Ft17709/03/Tb
                                         Case FTD051 issued on
                                         17/02/2005




                               18
Payment of Wages Act, 1991

The Payment of Wages Act continues to be the most frequently used Act for the
referral of complaints to the Rights Commissioners service.

In 2007 there were 2,961 complaints received compared to 2,275 in 2006, an increase
of 30%.

There are three basic rights enshrined in the Act.

   1. The right to a readily negotiable mode of Wage payment.

   2. The right to protection against unlawful deductions.

   3. The right to a written statement of wages and any deduction there from.

The Act defines wages as any fee, bonus or commission, or any holiday sick or
maternity pay or any other emolument, referable to the employment including any
money due in lieu of notice on termination of employment.

Rights Commissioners hear complaints under Section 5 of the Act, which is the
Section concerned with unlawful deductions.

A complaint must be made within 6 months from the date of the contravention that is
the subject of the complaint. The Rights Commissioner may extend that period by a
further 6 months if he/she is satisfied that exceptional circumstances prevented the
complaint being made within the prescribed time limit.

Many complaints are referred by individuals, and relate to underpayment of Wages
compared to rates properly and legally payable in accordance with Joint Labour
Committee Employment Regulation Orders issued by the Labour Court and
Registered Employment Agreements which provide for minimum rates of pay and
Conditions of Employment for employees in particular industries. In this regard the
Construction Industry Registered Agreement attracts a large number of complaints.
Complaints are also made regarding the underpayment of wages or bonus due in
accordance with the contract of employment.

If the person who makes the complaint or the person or company against whom it is
made do not agree with the Decision of the Rights Commissioner they may appeal the
decision to the Employment Appeals Tribunal. The time limit for making the appeal is
6 weeks from the date it is issued by the Rights Commissioner.
For more details on appeals see the website of the Employment Appeals Tribunal.




                                           19
The following is a sample of some of the decisions made by Rights Commissioners on
complaints referred under the Payment of Wages Act.


1.     Case Ref:      R05463/PW

The claimant was a security officer employed from August 2006 until July 20007.
He complained that he was underpaid 43 cent per hour compared to the Joint Labour
Committee (JLC) rate for the industry. The employer acknowledged that there was an
inadvertent underpayment.

Decision

The Rights Commissioner upheld the complaint and awarded the claimant €199 being
the calculated amount of the underpayment.


2.     Case Ref:      R060164/PW

The claimant was employed as a Head Chef from July to November 2007.
He complained that when his employment terminated he was owed payment for
Annual Leave and Public Holidays amounting to €1,039.
The employer argued that the claimant was dismissed and that there was a verbal
agreement to withhold €1,000, which was due in holiday pay to reimburse the
employer for goods and property taken.

Decision

The Rights Commissioner in upholding the complaint quoted Sec 5 (i) (c) of the Act
which states “ an employer shall not make a deduction unless the employee has given
his prior consent in writing to it”.
The Rights Commissioner found that no such consent had been given and ordered the
employer to pay the claimant €1,039


3.     Case Ref:      R053682/PW

The claimant was employed by the respondent from September to November 2006.

He sought payment of € 6,452 which he alleged was due to him in respect of unpaid
wages, minimum notice, holiday pay and overtime.
The complaint was referred to the Rights Commissioner Service in June 2007, which
was outside the 6 months time limit for referring complaints permitted by the
legislation.

Decision

The Rights Commissioner found that no exceptional circumstances prevented the
presentation of a complaint within the prescribed time limit and that therefore he had
no jurisdiction to hear the complaint.


                                          20
4.     Case Ref:      R049966/PW

On behalf of the claimant, it was submitted that he was engaged in tiling work and as
such was covered by the provisions of the Registered Employment Agreement (REA)
for the Construction Industry.
The respondent submitted that the claimant was not involved in any plumbing or
construction work and was only involved in tiling bathrooms or setting up stands for
bathrooms by way of demonstrations. They submitted that their business was in the
retail tile and bathroom sector and any tiling would constitute a minority part of the
work.

Decision

The Rights Commissioner having considered the matter found on balance that the
REA did not apply to the claimant and that the complaint failed.


5.     Case Ref:      R055032/PW

The claimant was employed in the construction industry for a period of 14 weeks
from December 2006 until March 2007. He was paid €350 per week for a 40 hour
week and complained that he should have been paid at the General Operative Grade B
rate in line with the REA for the construction industry.
The respondent argued that the claimant was employed as an apprentice plumber and
was paid over the rate for that position.

Decision

The Rights Commissioner found that the records provided by the respondent were
deficient and that he preferred the evidence of the claimant. He upheld the complaint
and required the respondent to pay the claimant € 3,771.

6.     Case Ref:      R053199/PW

The claimant was employed as a farm labourer from February 1998 until March 2007.
He said that he worked 8 hours per day for 5.5 days per week (44 hours) and was paid
€350 per fortnight and never received any holiday pay.

The respondent accepted that the claimant was underpaid inasmuch as the JLC rate
for the Agricultural Sector was not applied, but argued that the claimant worked 42
hours per week, and not 44 hours as claimed. It was also argued on behalf of the
respondent that as the complaint was made in May 2007 it only covered 15.5 weeks
and not the total period as claimed.

Decision

The Rights Commissioner upheld the complaint and stated that in the exceptional
circumstances of the case he required the respondent to pay the claimant €5, 717.


                                          21
7.     Case Ref:      R052867PW

The claimant was employed by the respondent from November 2006 until January
2007. She complained that that she was not paid wages for periods during that time.

She kept her own records and estimated that she was owed €1,041 for 129 hours
worked and for which she was not paid.
The representative of the responded acknowledged that some money was due to the
claimant and an agreement was reached at the hearing that the respondent would pay
the claimant €900 in settlement of the matter.

Decision

The respondent failed to honour the agreement and the Rights Commissioner issued a
decision requiring the respondent to pay the claimant €1,041.

8.     Case Ref:      R057059/PW

The claimant was employed by the respondent from September 2006 until September
2007. His gross weekly wage was €500 and he complained that when his employment
terminated he was not paid his lying or back weeks pay.

The respondent stated that the company did not operate a lying week or back week.
Wages were paid on a current week basis each Friday. Overtime was paid one week
behind.

Decision

Based on the evidence the Rights Commissioner held that the complaint was not well
founded and that it failed.


9.     Case Ref:      R056474/PW

The claimant was employed by the respondent as a beautician from end of January
until end of August 2007. She was paid €350 for a 40 hour week.
She complained that when the respondent terminated her employment she failed to
pay her in respect of her back week, her current week, minimum notice and holiday
pay.

The respondent said that the claimant was dismissed for gross misconduct and
therefore was not entitled to notice. In addition she owed the respondent for training
received and had failed to charge for two treatments to a total of €562.

Decision

The Rights Commissioner found in favour of the claimant on the grounds that in
making the deductions the respondent was in breach of Section 5 of the Act.
He required the respondent to pay the claimant €1,276.



                                          22
Terms of Employment (Information) Act, 1994

This Act transposes into Irish Law the European Council Directive on ‘An Employers
obligation to inform employees of the conditions applicable to the contract or
employment relationship’.

The Act covers all employees (including part-time workers and those employed
through employment agencies) who are in continuous employment for one month.
Not later than 2 months after the commencement of employment, the employer is
required to give, or cause to be given, to the employee a statement in writing setting
out certain particulars that are specified in Section 3 of the Act.
Those in the employment prior to the enactment of the legislation (May 1994) have to
request the statement.


While the complete contract of employment does not have to be in writing Section 3
specifies certain terms that must be in the written statement. The following is an
example of some of the information that must be given (see Section 3 of the Act for
more detail):

      Full name and address of employer;
      Starting date;
      Job title or nature of the work;
      Details if the contract is for a fixed-term;
      Details of rest periods and breaks required by law;
      Hours of work;
      The rate or method of calculation of pay;
      Details of paid leave;
      Periods of notice to be given or received.

Any change in the terms (except those brought about by changes in the law) must be
notified to the employee within one month.

An employee who considers that the employer is not observing the terms of the
legislation may make a complaint to a Rights Commissioner. The complaint can be
made at anytime while in the employment and up to six months after the employment
ends. In 2007 there were 1,295 complaints dealt with by Rights Commissioners under
this legislation. A Rights Commissioner can award up to 4 weeks pay in
compensation to an employee for breaches of the Act.

An appeal against a recommendation of a Rights Commissioner is made to the
Employment Appeals Tribunal and must be made within 6 weeks of the
recommendation.




                                          23
The following is a sample of some recommendations made by Rights Commissioners
under this legislation.


1.     Case Ref:      R051420/TE

The claimant was employed as a lorry driver by the respondent from November 2004
until January 2007.He was paid €550 per week.
He complained that the respondent failed to issue him with a written statement of his
terms of employment contrary to the provisions of Section 3 of the Act.

The respondent accepted that no written statement had been issued to the claimant.

Decision

The Rights Commissioner upheld the complaint and ordered the respondent to pay the
claimant €2,020 in compensation.


2.     Case Ref:      R051265/TE

The claimant was employed by the respondent as a yard operative from September
2005 until December 2006. He was paid €427 per week.
He complained that the respondent failed to issue him with a written statement of his
terms of employment contrary to the provisions of Section 3 of the Act.

The respondent conceded that no written statement had been issued.

Decision

The Rights Commissioner upheld the complaint and ordered the respondent to pay the
claimant €1,600 in compensation.


3.     Case Ref:      R058540/TE

The claimant was employed as a Senior Bar Assistant from January 2006 until May
2007.

On her behalf, it was submitted that when she commenced employment she was asked
to sign a document, she was not given a copy of it. She stated that the respondent
failed to issue her with a written statement.

The respondent produced a copy of the statement signed by the claimant when she
commenced employment. It showed the application form, job title, rate of pay, place
of work and some other conditions. He accepted that it was not fully compliant with
the terms of the Act but said that all necessary information was available to the
claimant




                                          24
Decision

The Rights Commissioner upheld the complaint and ordered the respondent to pay the
claimant €1,000 in compensation.


4.     Case Ref:      R054554/TE

The claimant was employed by the respondent from October 2005 until February
2006. In July 2007 he made a complaint that the respondent had failed to issue him
with a written statement of his terms of employment.

Decision

The Rights Commissioner decided that as the time limit for making a complaint is 6
months from the date of termination of employment and as the complaint was made
outside this limit the Rights Commissioner had no jurisdiction to hear the complaint.


5.     Case Ref:      R055029/TE

The claimant was employed, as a general operative, by the respondent from July 2006
until April 2007. He complained that he was not issued with a written statement as
required by Section 3 of the Act.
The respondent accepted that no written statement was issued but stated that the
claimant was issued with a copy of the company handbook, and was given an
induction programme and provided with payslips. It was claimed that he was thus
provided with all the information required by Section 3.

Decision

The Rights Commissioner upheld the complaint and required the respondent to pay
the claimant €770 in compensation.


The Safety Health and Welfare at Work Act, 2005.

This Act repealed the similarly named Act of 1989. It makes further provisions for the
safety, health and welfare of persons at work. It clarifies the responsibilities of
employers, the self-employed, employees and others in relation to safety and health at
work.

Section 27 of the Act provides that an employer shall not penalise or threaten
penalisation against an employee for:

       a) Acting in compliance with the relevant statutory provisions.
       b) Performing any duty or exercising any right under the relevant statutory
          provisions.




                                          25
       c) Making a complaint or representation to his or her safety representative or
          employer or the Authority, as regards any matter relating to safety, health
          or welfare at work.
       d) Giving evidence in proceedings in respect of the enforcement of the
          relevant statutory provisions.
       e) Being a safety representative or an employee designated under Section 11
          or appointed under Section 18 to perform functions under the Act.

Penalisation includes dismissal; or the threat of suspension, lay-off or dismissal. It
also includes demotion, or loss of opportunity for promotion, transfer of duties,
change of location, reduction in wages, change in working hours, imposition of any
discipline reprimand or other penalty and coercion or intimidation.

An employee who considers that he/she has been penalised in contravention of
Section 27 of the Act may make a complaint to a Rights Commissioner, The
complaint must be made within six months of the contravention on which the
complaint is based. A Rights Commissioner may extend this limit by a further 6
months if they consider it reasonable to do so. An appeal against a Decision of a
Rights Commissioner is made to the Labour Court and must be made within 6 weeks
of the Rights Commissioners Decision.

Several complaints have been made to Rights Commissioners that are not based on
Section 27 but rather are concerned with breaches of the legislation that do not come
within the jurisdiction of a Rights Commissioner and which should, more properly, be
made to the Health and Safety Authority.

1.     Case Ref:       R04712/HS

In this case the claimant complained to a Rights Commissioner that his employer had
breached Sections 8, 9, 10, 11, 20, 25, and 26 of the Act and had therefore penalised
him contrary to the provisions of Section 27.

Decision

The Rights Commissioner in his decision stated that the function of a Rights
Commissioner is to determine whether or not an employer had contravened the
provisions of Section 27 by penalising the employee where the employee was acting
in good faith in the interests of health and safety. The Rights Commissioner held that
he was not presented with any evidence that the claimant was penalised for taking any
of the actions listed in Section 27 and accordingly declared that the complaint was not
well founded.
The claimant appealed the decision to the Labour Court and the Court upheld the
decision of the Rights Commissioner. See Labour Court Determination No. HSD081.
on the Labour Court website




                                           26

				
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