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Category: News
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Monday, 31 January 2011 20:15 |
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Employment Law, Oisín Scollard - Aer Lingus marks its 75th birthday with unrest
PEOPLE who have booked ski holidays are nervously checking every day to see if their Aer Lingus ticket to the piste has been cancelled. Last Wednesday, 14 Aer Lingus flights were cancelled due to industrial action by the airline's cabin crew. But why?
Aer Lingus' passenger numbers and revenues have fallen sharply in recent years as the recession takes its toll on tourism. The company, under the direction of Christoph Mueller, is restructuring its commercial operations and cutting costs severely. The airline and the trade unions, through arbitration, codified how the cost reductions would be implemented. An agreement was reached, called 'Greenfield', and a company statement issued last year said: "The 'Greenfield' Cost Reduction Programme is now under way following a 74% positive staff ballot supporting the proposals".
The company contends that new rostering arrangements for cabin crew were agreed as part of the binding arbitration agreement. The cabin crew, represented by trade union Impact, contend that the new rosters go above and beyond what was agreed at arbitration, and further, have advised cabin crew to revert to pre-existing rosters.
Aer Lingus has threatened any employee refusing to operate under the new rosters with disciplinary action. Impact contends: "Impact cabin crew resolve to take industrial action commencing with a work-to-rule (within contract), but up to and including strike action because of Aer Lingus's deliberate breach of contract, agreements and the black book (rostering) rules." A strike may now follow, meaning more flight cancellations.
It is understood Aer Lingus has in fact commenced the disciplinary process and, as of last Wednesday, almost 200 employees have been removed from the payroll. The airline's position is that the new rosters are contractual and thus obligatory. Whether the new rosters do in fact go beyond the arbitration agreement is a matter for the courts to decide. This debacle is not how the airline planned to celebrate its 75th birthday.
Oisín Scollard is a Barrister with Employment Law Firm www.employmentclinic.ie, twitter: @oscollard
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Category: News
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Thursday, 20 January 2011 16:57 |
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Employment Law, Oisín Scollard - A year should be enough time to assess an employee
The British government is currently debating whether to increase the qualifying period for unfair dismissal from one to two years, believing the measure will improve flexibility and encourage small and medium enterprises to create jobs. The proposed measure is part of their government's "new economic dynamism".
But will it achieve this or simply make it easier for employers to dismiss employees? For most of its existence, the legislation did in fact specify two years, until Tony Blair took office and reduced the qualifying period to one year. The divergence highlights the disparate policies of the two governments.
In Ireland the qualifying period for unfair dismissal is one year, save where dismissal occasions by virtue of an employee's pregnancy. The Act in Ireland, as in the UK, has its origins from a European Directive. The legislation expressly precludes probationary periods that exceed 12 months. With advanced methods of recruitment and evaluation methods allied with a more educated workforce, is a period in excess of 12 months required for the assessment of employee suitability? Perhaps it would be in NASA or shadowing a brain surgeon for suitability to go it alone.
A probationary period in essence gives an employer the flexibility and statutory ambit to evaluate an employee for up to a maximum of just less than 12 months (the evaluation period) - note the "just less than". If an employee is not suitable to the position or indeed the organisation, then an employer can dismiss the employee fairly so long as the correct notice period is provided, and equality legalisation is not breached. That is a significant period to be exposed to an individual; one would have a very good gauge of an employee's ability and performance.
Furthermore employers are increasingly defining performance goals for employees and assessing and measuring the satisfaction of these in mid-year and year-end performance reviews.
The logic is simple, set goals and expectations for employees, define deliverables and give employees ownership of the execution. Next, manage and evaluate employees throughout the period but ultimately assess each employee against expectations. Employees will exceed, meet or not meet these expectations.
It is unlikely that such a change in the qualifying period would ever happen in Ireland, so for now the probationary period not exceeding 12 months is here to stay. Remember this simple maxim, reward performers, design improvement plans for those who can achieve more and talk to your lawyers about non-performers. Seriously, we don't bite.
Oisín Scollard is a barrister and consultant with employment law firm, www.employmentclinic.ie
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Category: News
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Thursday, 20 January 2011 16:48 |
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Employment Law, Oisín Scollard - Fate of bonus culture a matter for the judiciary
In recent weeks the AIB bonus controversy has attracted significant media coverage. The furore provoked a remarkable intervention by finance minister Brian Lenihan, writing to AIB warning the bank that if its bonus payments were honoured, the state would withdraw financial aid to the bank. The bank had little option to acquiesce in the face of such a forthright ministerial challenge.
Lenihan also brought before the Dáil the Credit Institutions (Stabilisation) Bill 2010, which will fundamentally change how bankers are paid bonuses in the future. Many legal eyebrows have been raised at the sweeping nature of the bill, not least the inclusion of ministerial powers to retrospectively curtail the payment of bonuses in an effort to give legislative effect to the bank's now stated intention not to pay the outstanding bonuses, reportedly worth €40m. It is reasonable to assume that a constitutional challenge is imminent.
Employers use bonuses to entice a potential employee to the company or to incentivise an existing relationship to increase productivity. However, not all bonuses are enforceable. A distinction must be made between contractual bonuses, those which are expressly defined within the employment contract and verbal or discretionary bonuses. A failure to pay defined bonuses is likely to result in a breach-of-contract claim. It is now known that numerous such cases have been initiated by affected parties within AIB. What is at stake in that particular case is whether there is a contractual obligation by the bank to honour the bonuses.
One banker has already secured a High Court judgment to the amount of €161,000 and it is believed that the bank is proceeding to settle this claim. However, there is speculation that the AIB bonuses were not explicitly provided for in at least some of the beneficiaries' employment contracts. This may present further difficulties for those seeking to enforce the bonus payments.
The fate of not only the bonus payments but the Credit Institutions (Stabilisation) Bill alike, may become matters for the judiciary to decide upon.
Oisin Scollard is Legal Counsel with Legal HR firm Employmentclinic.ie
http://www.tribune.ie/article/2010/dec/26/employment-law-oisin-scollard-fate-of-bonus-cultur/?q=scollard |
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Category: News
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Saturday, 15 January 2011 13:22 |
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Employment Law, Oisín Scollard - Safety begins with review and compliance
Recently, a health and safety consultant told me he was requested to run a lawnmower training course. As dumbfounded as I was, I concluded that health and safety obligations in Ireland, while critically important, are overtly onerous in some instances.
Employers have a legal duty to ensure their employees' safety, health and welfare at work as far as is reasonably practicable. In order to prevent workplace injuries and ill health, the employer is required, among other things, to provide systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to the health of employees. Furthermore, employers must manage and conduct work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
Back to the lawnmower. Surely it's just a case of pulling the chord, and walking up and down the lawn in straight lines for optimum effect? Not so. The hazards posed by this lawnmower imposed a duty on the employer to carry out a risk assessment for the workplace, hence the training course.
Employers must prepare a safety statement which is based on the risk assessment. The statement should contain the details of people in the workforce who are responsible for safety issues. Employees should be given access to this statement and employers should review it on a regular basis.
Employees need to be made aware about any risks that require the wearing of protective equipment and should be provided with protective equipment (free of charge) together with training in its use, where necessary.
Details of all accidents reported should be recorded and any accident that results in an employee missing three consecutive days at work (not including the day of the accident) means a report must be made to the Health and Safety Authority.
So if you are hiring someone this summer to cut your grass, it might be time to review your risk assessment and book a place on the lawnmower training course.
Oisin Scollard is a barrister and legal counsel with legal HR company www.employmentclinic.ie
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Category: News
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Wednesday, 17 November 2010 17:54 |
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A Charity Law Seminar hosted by Employment Clinic
Employment Clinic will make a donation to ww.Turn2me.ie
Charity Law Updates – Employment law duties, The Charities Act 2009, Financial Obligations and Health & Safety considerations.
This seminar will coincide with the forthcoming budget which may have a significant impact on the Irish charitable sector, our panel of experts will deliver a summary of key aspects of the budget and how this will affect Irish charities.
When: Thursday December 9th, 2pm - 4:30pm, registration 1:30pm
Where: D4 Berkeley Court Hotel, Dublin 4.
Price: €99 per delegate, group rates also available
2 CPD Points will be awarded
Moderated by:
Dr. Gerald Kean
The event will be moderated by Dr. Kean who is an accomplished solicitor with over 30 years experience, representing many Irish celebrities and a number of premiership footballer players. Dr. Kean is renowned for his generous support to a number of charities, and donated all proceeds from his book to charity. Dr. Kean and his wife Lisa recently hosted the Gerald Kean & Lisa Murphy Golf Classic for charity in Palmerstown House Golf Club in aid of The Hope Foundation. All funds raised benefited children living in appalling conditions on the streets of Calcutta.
Speakers:
1. Dr. Oonagh Breen
Dr Breen specialises in the area of comparative charity regulation and non-profit-state collaboration in public policy formation and development. A co-author of the Law Society's Report, Charity Law: The case for reform (2002), Dr. Breen was appointed by the Department of Community Rural and Gaeltacht Affairs to write an external report on the submissions received during the Department's charity law reform consultation process in 2004. Dr. Breen has worked with non-profit representatives, the Law Reform Commission and the Irish Government on issues relating to the reform of charity law.
2. Oisin Scollard BL
Oisin is a Barrister and Legal Counsel with Employment Clinic a specialised Legal HR consultancy. Oisin is a specialist in employment law, having practised at the bar of Ireland for over 4 years and more recently assuming the position of legal counsel with Employment Clinic. Oisin writes a weekly column for the Sunday Tribune on employment law matters. Oisin is also co-founder of the mental health charity www.turn2me.ie, an interactive support website for people with personal problems to share, discuss and offload those problems. The charity was setup in the middle of the downturn and despite the lack of funding is continuing to grow and help more people in Ireland.
3. Darren Connolly
Darren is an accountant with the Dublin firm, Byrne, Curtin, Kelly which is a long established Accountancy and Auditor practice. Darren is a board member of a number of charities in Ireland and is an expert in charitable financial regulation and corporate governance matters. Darren also co-authors an analysis of the budget each year, and will be addressing key implications of budget 2010.
4. Gavin Coyle
Gavin Coyle is an expert in Health and Safety and is a founding Director of the Health and Safety consultancy firm, Coyle & Holland. With office locations in Dublin and Chester, and a proven track record of success in the industries the company work in, namely Manufacturing, Corporate, Utilities, Local Authority, Oil & Gas, Construction and Renewable Energy and not for profit. Gavin will address health and safety considerations for charities and in particular volunteers, fundraising, and using off-site locations for charitable purposes.
Book Now below Securely with Paypal or call (01) 7088410 to reserve your place and pay
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Category: News
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Tuesday, 09 November 2010 11:39 |
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Employers can face claims arising from recruitment and selection. Mitigating this means designing and preparing the right interview and selection criteria. Having reviewed CVs, screened candidates and applied a skills assessment, a shortlist should be drawn up for interview. Interviews should be conducted by more than one person so that the selection process is more objective.
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Category: News
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Tuesday, 09 November 2010 11:36 |
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Monitoring of employees takes many forms: computer, telephone, the right to search and CCTV.
Most employees will accept that it may be necessary to occasionally monitor their computer usage. The reasons for monitoring may differ, but a policy is a prerequisite to bringing understanding and consensus. An employer may want to monitor the standard of work of employees or to ascertain that there has been no material misuse of company systems and no inappropriate behaviour or illegal downloading. Employers should ensure staff are in no doubt that inappropriate usage is a disciplinary issue with sanctions up to and including termination of employment.
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Category: News
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Tuesday, 09 November 2010 11:32 |
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As Christmas looms and the festive season brings a welcome increase in business and sales, many employers will be considering hiring temporary and/or part-time staff. How can employers legally approach this?
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Category: News
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Tuesday, 09 November 2010 11:25 |
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As the economy remains sluggish, employers are increasingly looking to their cost base in order to achieve further savings. A significant proportion of these may be found in salaries, but the trade-off is that employers need key people to maintain business and mobilise for any upturn.
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Category: News
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Thursday, 14 October 2010 16:14 |
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Employment Law, Oisín Scollard - A better way to resolve workplace disputes
Workplace disputes are consuming the time of many businesses. With staff reductions, this is wasted time that many employers cannot afford. Workplace conflict often leads to increased absenteeism and lower productivity and can lead to a personal injury claim for bullying.
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