Dealing with Personal Grievances

Employees should first attempt to resolve workplace problems by discussing them with their employer. A personal grievance can be raised in the case of an unjustifiable dismissal, a disadvantage in some aspect of your employment, discrimination, sexual or racial harassment and duress in relation to union membership. A personal grievance based on unjustified dismissal cannot be raised during a legal trial period but the other grounds for a grievance are not excluded during a trial period.

Employees must raise a personal grievance with their employee within 90 days of

the action giving rise to the grievance; or
the date on which they become aware of the action,

whichever is later.

An employer may agree to a grievance being raised after this period and in “exceptional circumstances” the Employment Relations Authority may order a longer period. However, employees are advised to comply with the 90 day time limit and not rely on getting an extension of time.

A dismissed employee may request written reasons for their dismissal – time limits apply. A personal grievance must be pursued in the Employment Relations Authority or the Employment Court within three years of being raised with the employer. The Authority may make orders including reinstatement to an employee’s former position, reimbursement of lost wages or other money, and compensation for humiliation, loss of dignity and injury to feelings.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.

Disciplinary Action

The Procedures and Your Rights

As an employer investigating allegations of misconduct or serious misconduct you must ensure that you follow the correct procedure and that any decision to take disciplinary action at the conclusion of a hearing is justifiable. The courts look at what a fair and reasonable employer would have done in the circumstances. You must approach the investigation with an open mind and ensure that all available evidence is gathered. This means speaking to any witnesses and collecting all relevant information.

Employees should be given adequate written notice of any allegations against them as well as the information on which the allegations are based. The letter inviting an employee to a hearing must state that they have a right to be accompanied by a support person or representative and explain any potential consequences if the allegations are found to be proven e.g. a warning or dismissal. As an employee you have the right to respond to any allegations made against you.

Employers should investigate any new information provided by an employee. It is advisable to have someone present to record the meeting in summary form. After hearing an employee’s response the employer should take time to consider all the evidence before making a decision.

If a finding is made against an employee and disciplinary action e.g. a warning or dismissal is considered the employee should be given an opportunity to comment on the suitability of the proposed action. The employee’s work history and the way similar incidents have been dealt with in the past are relevant to what, if any, action may be taken. Generally speaking, a series of warnings will be given in the case of misconduct while for serious misconduct dismissal may follow.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.

Get Advice About The Redundancy Process

It is not uncommon for employees to say that they have been made redundant. In fact, it is their role that the company has decided is no longer required. However, that is small comfort for an employee.

The law allows an employer to make a position redundant if they have a genuine business reason. Redundancy cannot be misused for other purposes e.g. to deal with performance or misconduct issues. Employers proposing to make roles redundant must follow a fair process. This may be set out in the employment agreement.

Employees have the right to know what changes are proposed, the reasons for the changes, the objectives the company wishes to achieve and, most importantly, the potential impact on positions. Employers must therefore provide employees with relevant information so that they have a real opportunity to comment on proposed changes which the employer must take into account before a decision is made.

If the process results in employees having to apply for remaining roles they must be consulted about the proposed selection criteria e.g. performance or skills.

An agreement may require a company making roles redundant to consider redeployment. Finally, compensation for redundancy may be provided for in the agreement or may be agreed during the redundancy process. If not, there is no right to be paid compensation.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.

What Are Your Rights As An Employee or Employer?

Employees who commenced work after 2000 must have a written employment agreement, which may be either an individual or collective agreement.

Employees must be paid no less than the minimum wage, currently set at $12.50 for those aged 16 and older, which is reviewed every year. The rate for new entrants and certain trainees is set at $10.00.

Employers must provide a safe work environment. Employees must take reasonable care to ensure their own safety and avoid causing harm to others. Employees may refuse work likely to cause them serious harm.

Employers and employees must deal with each other in good faith. If employees are present at work and prepared to carry out their work they are entitled to be paid, except in the case of a lockout or suspension. Employees must exercise reasonable skill and care in their work and obey lawful and reasonable instructions.

The Holidays Act provides for certain minimum leave entitlements. However, many employment agreements provide better entitlements. Employees are entitled to four week’s annual leave after a year’s service. For those on either fixed term agreements of less than 12 months or casual agreements an amount equal to 8% of gross salary may be paid instead of annual leave. Annual leave is usually taken at an agreed time but if agreement can’t be reached the employer may give the employee notice (14 days at least) to take leave.

Special provisions apply to public holidays. Employers must pay employees for a public holiday if they would normally have worked on that day. Time and a half must be paid (or a higher rate if the agreement provides for one) for work actually performed on a public holiday if it would have been a normal working day for the employee. In addition the employee will be entitled to an alternative day’s leave.

After six months of employment an employee is entitled to five days sick leave per year. Unused sick leave may accumulate to a maximum of 20 days. The Holidays Act also provides for bereavement leave of either one or three days depending on the circumstances. Parental leave is covered in other legislation.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.

When is Dismissal Justified?

Dismissal is justified for serious misconduct which has damaged trust and confidence in the employment relationship beyond repair. With misconduct which does not amount to serious misconduct a series of warnings is usually required. So one would have a first, then second or final warning followed by dismissal, if justified. Your workplace Code of Conduct should provide information about this.

An employer investigating allegations of misconduct or serious misconduct must follow a fair procedure and ensure that any decision to take disciplinary action at the conclusion of a hearing is justifiable. The courts look at what a fair and reasonable employer would have done in the circumstances. Employers must approach the investigation with an open mind and ensure that all available evidence is gathered. This means speaking to any witnesses and collecting all relevant information.

Employees should be given adequate written notice of any allegations against them as well as the information on which the allegations are based. The letter inviting an employee to a hearing must state that they have a right to be accompanied by a support person or representative and that dismissal is a potential consequence if the allegations are found to be proven. As an employee you have the right to respond to any allegations made against you.

Employers should investigate any new information provided by an employee. After hearing an employee’s response the employer should take time to consider all the evidence before making a decision. If a finding is made against an employee and dismissal is considered the employee must be given an opportunity to comment on this. The employee’s work history and the way similar incidents have been dealt with in the past are relevant to what, if any, action may be taken.

What Can Be Done About It?

An employee may challenge a decision to dismiss by raising a personal grievance. A personal grievance based on unjustified dismissal cannot, however, be raised during a legal trial period. It is best to get advice if you are faced with this situation.

For more information on how to raise a personal grievance see Dealing with a personal grievance in the workplace. We can help.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.

Workplace Harassment

Harassment and bullying are serious issues. How to address them.

Harassment is unwelcome behaviour, either comments or conduct, which could be insulting or intimidating. The behaviour may be repeated or a single incident and is usually focused on a feature like race or gender of the target employee. Racial and sexual harassment are prohibited under the Human Rights Act 1993 and the Employment Relations Act 2000.

An employee subjected to harassment can raise a personal grievance or take action under the Human Rights Act, if that Act has been contravened, for instance, where harassment is based on race or gender. Employers can be held liable not only for their own actions but for also for those of their employees if they do not take appropriate action to prevent them.

Bullying is similar to harassment in some ways but is usually repeated behaviour which has a detrimental effect on an employee by undermining or humiliating them. Unlike harassment the behaviour may not focus on a feature of an employee such as race or gender. Bullying complaints are usually directed against someone in authority but bullying can also take place among colleagues. Employees who are targeted by bullies should keep notes of their experiences and bring them to the attention of management. If their complaints are not properly addressed they should seek further help.

Under the Health and Safety in Employment Act 1992 employers have to ensure the safety of employees while at work. This includes protection from physical and psychological harm. Failure to comply could lead to claims of constructive dismissal, unjustified disadvantage and a claim of breach of contract is also possible.

It is good practice for employers to have a harassment policy defining what bullying and harassment mean and providing avenues for affected employees to raise their concerns and have them addressed.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.

Discrimination in the Workplace

The Human Rights Act 1993 prohibits discrimination on the grounds of race, colour, ethnic or national origins, marital status, sex including pregnancy, sexual orientation, family status e.g. care of children, disability, age, employment status, religious or ethical belief and political opinion.

Unlawful discrimination occurs when a person is treated less favourably than someone else in the same or similar circumstances because of a characteristic or feature of that person e.g. their race or gender. This may relate to a past or present characteristic and even to a characteristic wrongly assumed to exist or have existed in the past.

Discrimination may be direct or indirect, where behaviour or policies have a discriminatory effect, unless there is a good reason for this. The Human Rights Act protects employees as well as volunteers, work seekers and independent contractors.

Employers should take care to avoid any suggestion, when advertising jobs or interviewing, that they intend discriminating on any of the grounds in the Human Rights Act. They should also be careful to ensure that they don’t discriminate on any of these grounds in refusing to employ a qualified job applicant, offering less favourable terms and conditions of employment or in terminating employment.

The Employment Relations Act also prohibits discrimination on the grounds listed in the Human Rights Act but in addition makes it unlawful to discriminate on the basis of an employee’s union activity.

In limited circumstances discrimination may not be unlawful, mainly where there is a genuine occupational qualification such as sex or age. A modelling contract may require female staff only, similar requirements could apply to a clothing store where staff assist customers fitting clothes and age would be a requirement with staff serving liquor in a bar.

If you think you may be the victim of discrimination you should seek advice.

Note: The information above is intended as general information only and should not be used as an alternative to professional advice.