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Workplace Solicitor News

Kepak Business Executive Award €7,500 Work Compensation for Overwork

Posted: August 3rd, 2018

A former Business Development Executive for Kepak Convenience Foods Unlimited Co, Gráinne O’Hara,  has been awarded €7,500 in relation to breaches of the Organisation of Working Time Act.

Ms O’Hara had to handle out-of-hours work emails, a number of which took place after midnight. These request let to extra work of over 48 hours a week on multiple occasions.

Her (Ms O’Hara’s) contract of employment with the Kepak firm stated that her working week was 40 hours. She told the Court that she normally worked close to 60 hours a week. To reinforce her claims, Ms O’Hara showed the Court emails that she sent to and/or received from her employers both before her start time and after her normal finish time.

In addition to this, Ms O’Hara showed the Court emails that she received from her employers prior to 8am. Ms O’Hara told the court she had requested from Kepak, but was was not provided with, a copy of all of her emails while she worked there.

Ms O’Hara was employed at Kepak, based at the Blanchardstown facility, from July 2016 to April 14th 2017.

In response to the claims, Kepak argued that the volume level of work given to Ms O’Hara was not unusual for their staff members. They added that no other staff members had worked longer that the 48 hours in a week.

The Labour Court ruled that Kepak did not provide all of the details of Ms O’Hara’s emails and gave no evidence to contradict her evidence.

The court found that Kepak acted in a manner not in line with the Organisation of Working Time Act by requiring Ms O’Hara to longer than 48 hours a week. They also said that Ms O’Hara’s complaint had a firm basis.

Ms O’Hara appealed the Adjudication Officer work injury compensation award of €6,240 to her. Ms O’Hara argued that this was an adequate amount of personal injury compensation “for the systemic nature of the breaches of the Act involved in the case”. The Labour Court amended the Adjudication Officer’s award by 20% to an overall figure of €7,500.

 

Shop Assistant Awarded €7k Unfair Dismissal Compensation For Good Friday Alcohol Sale

Posted: July 4th, 2018

A retailer has been ordered to pay a shop assistant €7,000 in unfair dismissal compensation after she was sacked for selling a bottle of beer to a customer on Good Friday of 2017.

the Workplace Relations Commission (WRC) found that she was unfairly dismissed and that her complaint for unfair dismissal ‘is well founded’. The woman said that she made an honest mistake in selling the bottle of beer on April 14th 2017 but her bosses terminated her employment for gross misconduct. The retailer countered that it could have been in significant trouble for the sale of alcohol on a prohibited day, including a possible temporary closure order being applied to the premises.

The woman told the WRC hearing that she believed that there were no reasonable grounds for her termination. She arguedthat it was not fair as her employer had not issued a reminder to staff not to sell alcohol on the day and that the effort to cordon off the alcohol was obviously insufficient to prevent customers who wanted to purchase alcohol.

Additionally she pointed out that the cash tills were not set up to prevent the sale like it does on other times when this was the case.

The hearing was told that the woman felt that the sanction of dismissal for selling a bottle of beer was completely disproportionate. She disputed that she knowingly sold the bottle of beer to the customer. Furthermore, she stated that her former employer did not adhere with standard procedures in dismissing her from her position.

The retailer advised the hearing that the store manager became aware that there had been a sale of beer on Good Friday and having looked over the CCTV was able to see that the sales assistant was responsible for the sale.

In his findings, WRC Adjudication Officer, James Kelly stated that the worker should have been more careful.

He said: “The sale of one bottle of beer appears minor in isolation however, the possibility of the consequences on the business, with the possible temporary closure should it have been reported and prosecuted are significant. Accordingly, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal.”

 

Woman in Sexual Harrassment Case Awarded €37,000

Posted: June 1st, 2018

A €37,000 payout has been awarded to a woman by the the Workplace Relations Commission (WRC) who alleged that she was sexually harassed and had felt pressurised to rub antibiotic cream into her bosses’ back and groin.

The woman, a former food service employee, took a compensation in connection to the the payment of wages, unfair dismissal and sexual harassment actions against her previous employer. The claims were ruled to be valid by the adjudication officer managing the case. The officer also dismissed the findings of an independent investigator, who was contracted by the employer, who had said that there was no proof bullying or harassment previously as the woman had claimed/

The woman told the WRC that she was the victim of an “ongoing bullying and harassment and intolerable working conditions during the course of her employment which had a detrimental effect on her health and well-being”. It was alleged that she worked 25-30 hours a week but was only paid €200 despite this.

Along with this, she told her solicitor that there had been efforts made to bribe her into cancelling the and also that her former co-employees were stopped from speaking out in support of her. She stated that she was diagnosed with a mental health condition, and was on medication for depression while working in the role.

The WRC was advised by a witness that the former employers “deliberately belittled and put down the claimant”, while another witness stated it was “common knowledge that the claimant was on medication for her mental health issues and that the respondent was constantly on her back and that she was often crying”.

The arguments made by the defence rested on the evidence of the investigator that the employer contracted when the woman asked for her P45 in September 2015. Despite concerns regarding the bias of the investigator the woman allowed the review to be conducted carried out.

The WRC adjudicator awarded the complainant in question €17,450 and othe figure for separate claims. In total, she was awarded €37,450 sexual harassment damages.

 

€47,500 in Unfair Dismissal Compensation for Former Cemetery Human Resources Manager

Posted: April 28th, 2018

The Workplace Relations Commission has ruled that the dismissal of a former human resources manager at a cemetery ‘both substantively and procedurally unfair’ and awarded him €47,500.

The HR manager being paid an annual salary of €51,500 when he was dismissed from his role in October 2016. He had worked at the cemetery since 1996. After being ill during March and April 2016 he went back to work and was told that a number of concerns had come up in connection with his work practices.

Following this he was placed on suspended from his role, with pay, from April to September of that year while an internal review of his actions was completed.

During a disciplinary hearing held by the deputy CEO of the cemetery on September 29, he was told he was being relieved of his position with immediate effect, due to his actions being classified as gross misconduct.

The former HR manager defended himself in the legal action, emphasising that he had a perfect disciplinary record before the ‘concern’ that were used as a basis for his dismissal.

These worries included the deletion of data from a company-owned hard drive, inadequate management of health and safety records and the way in which he dealt with the long-term absence of a colleague.

The mad claimed that he had removed the data from the hard drive due to a valid data request relating to the non-payment of bonuses for a period of two years. The data request in question had been overseen by the deputy CEO.

He also did not agree with the claim suggestion that he had mismanaged the prolonged absence of the other employee, saying that far from exposing the company to litigation or financial harm, he had actually saved the company from this.

Adjudication officer Eugene Hanly found that the criticism of the dismissed man’s actions was valid. However, he found in his favour in that there was insufficient grounds for the dismissal. He ruled that the company must pay the man €47,500 in unfair job dismissal compensation within six weeks of his finding.

Mattress Delivery Accident Leads to €400,000 Van Driver Compensation Claim

Posted: March 26th, 2018

A van driver is seeking work accident back injury compensation in the High Court as he  says he sustained server injuries when a mattress he was delivering carried him for 12 feet before throwing him back to the ground after it was blown by a gust of wind

Mr Declan Homan, a 54-year-old, van driver, told the High Court that he was delivering the 4 foot 6 inch mattress to an apartment on his last delivery on December 13 2011 when the accident took place. Despite returning to work in the three days immediately the accident, Mr Homan had to leave work due to pain and has not been able to work since then.

Mr Homan, who lives at Island Lodge, Walsh Island, Co Offaly, has taken the compensation action against Etmar Ltd, a company which one of his brother is a director of. The company has offices at Glen Easton Point, Leixlip, Co Kildare.

Kevin was completing deliveries with another one of his brothers in the Sandyford Industrial Estate in Dublin when he dropped from a height of roughly five feet, about twelve feet away from the van.

Mr Homan has also claimed that he was not given the required safety equipment including a safety harness. Due to the injuries that Mr Homan alleges  he sustained he  suffered back pain straight after the accident and constant pain persists which is made worse by any degree of activity.

Etmar Ltd are denying these claims.

Mr Homan told High Court Judge, Mr Justice Kevin Cross that he attended work the following next day and went to a doctor three days after the accident happened to be assessed.

Legal Counsel for Etmar, while questioning Mr Homan, put it to him that the severity of his injuries and the consequences were a “gross exaggeration” to which Mr Homan answered: “I disagree with you.”

Counsel claimed that the mattress incident could not be predicted by his employer as it was caused by a gust of wind and, also, that he (Mr Homan) had not told his superiors that was too windy to do the delivery. Mr Homan answered that he felt there was no point as he would have been told carry on anyway.

The back injury compensation case being heard before Mr Justice Kevin Cross continues.

 

€25,000 Garda Work Injury Compensation Award Approved

Posted: February 19th, 2018

A €25,000 Garda Work Injury compensation award has been approved following a head-butt attacked on a Wexford based Garda who suffered terrible snoring problems.

Sergeant Noel McSweeney experienced the injury to his nose when he was on duty. McSweeney’s snoring disturbed his wife’s sleep and he had to sleep in another room man times.

Barrister Ellen Gleeson told presiding Judge Justice Michael Twomey that, when when the incident occurred in May 2012, Sergeant McSweeney had been working on a missing person search.

Mr McSweeney said that the missing woman had been found in a car where she was intoxicated, possessing drugs and acting aggressively. She was taken into custody following this.

Speaking about the incident Sergeant McSweeney said: “She jumped back and threw her head backwards, hitting me in the nose and upper teeth”. He added that he suffered cuts to four of his upper front teeth and the line of his nose had been damaged. Mr McSweeney also suffered a restriction of the airflow through his nose along with a deviated septum in the assault.

Sergeant McSweeney also admitted that he was not conscious of the problem but did have to sleep in the spare room of his residence due to his snoring problems. He added that he only suffered minimal slight discomfort and, hence, he chose not to have surgery.

Judge Twomey referred to the Book of Quantum in assessing the amount of Garda Accident Compensation to be paid. He approved a compensation award of  €7,500 be paid for the minor dental damage along with €18,000 nose injury damages.

Right to Claim Garda Finger Injury Compensation Ruling is Appealed

Posted: January 26th, 2018

A Garda has appealed a refusal, by the Minister for Justice to allow him pursue a claim for Finger Injury Compensation for a injury he sustained in the line of duty.

Garda Noel Callan suffered a disfigured fingernail injury when a Garda car door slammed shut on his left small finger. He was, at the time of the incident, apprehending a drunk and violent man. His legal team are arguing that the Ministers refusal to allow him pursue a compensation claim as the injury was minor was incorrect and should be overturned.

Counsel for Garda Callan, Richard Kean SC, told the Hight Court that, as per the Garda Compensation Act, a member of the force who suffers an injury in the line of work may claim personal injury compensation through the courts.

Mr Kean argued that, though the injury suffered could not be termed profound or significant, it still should not be termed a minor injury. He added that the Justice Minister’s ruling was not sound and did not adequately take into account the medical reports that were produced at the initial hearing into the case.

The court was told that Garda Callan was also absent from work for the seven days immediately after the incident happened. He is right handed and received treatment on his left hand’s smallest finger.

Mr Callan lacerated his fingernail bed and his fingernail had to be removed. Following this he felt constant pain over the following eight months including a loss of sensation and tenderness when he was driving his car and completing other menial and non-work related duties.

The incident when he (Garda Callan) was on duty at Swords, Co Dublin, on August 26 2011.  Following a drunk man becoming violent, having being arrested in relation to public order offences, he struggled and a car door slammed down on Garda Callan’s left hand inflicting the fingernail injury.

The medical report referred to the fact that the fingernail was now irregular and deformed when it grew back. Garda Callan still suffers continual pain and tenderness, more so during times of colder weather.

The challenge was heard in the High Court last Wednesday. Judgement has been reserved judgment in relation to it.

Garda Awarded €30,000 Workplace Injury Compensation for Injury to Mouth

Posted: December 4th, 2017

Garda Sean Kelly (31) who is due to be wed this coming weekend, has been awarded €30,000 Garda Workplace Injury Compensation following an assaulted where he suffered a severe cut to his mouth.

Garda Kelly told the High Court that he is still sensitive in relation to the laceration on his upper lip and remarked to Mr Justice Bernard Barton he was still paranoid regarding the star-shaped scar. He was still able to find amusement with the presiding judge that he may have to wear some make-up when he gets married to his fiancé next Saturday.

The incident happened while he was at work on January 7 2012. As part of his duties, Garda Kelly had been called to a house in Finglas. Here a man, who had just been released from a psychiatric institution where he had been treated, was threatening to self harm. Garda Kelly was accompanied by two colleagues on the call in question

Garda Kelly told the court that the individual, who had swallowed a lot of non-prescriptive medication, had locked himself in his bathroom. From there he was threatening to throw himself out the bathroom window. Garda Kelly was struck on his mouth with a toilet brush holder, which lacerated his lip, when they tried to apprehend the man.

Garda Kelly had to be rushed to Connolly Hospital, Blanchardstown to tend to the bleeding. When he was treated, a portion of porcelain was found in his upper lip. X-rays clearly displayed that he had not suffered any major fractures.

He was also given an anaesthetic injection and received seven stitches, a number of them on the inside of his mouth. When the scar later became infected, he had to follows a course of antibiotics until the infection had cleared up. The scar on the exterior of his lip was identifiable at close quarters.

Barrister Derek Ryan, representing the Minister for Public Expenditure, remarked to the High Court that, due to conflicting medical reports, he did not believe Garda Kelly had suffered Post Traumatic Stress to the degree that it would justify an exceptional workplace compensation award.

Healthcare Workers Make Sexual Harassment Against Patients: RTE Report

Posted: November 28th, 2017

Five staff members in the State healthcare system took sexual harassment allegations over the last few years, claiming they were sexually assaulted by service users, according to a report published by RTE in November 2017.

The State Claims Agency has not made public actual details about where the supposed abuse happened in these or any other cases.

The claims relate to incidents that took place between 2012 and 2016 and make up almost half of all sexual harassment claims being taken care by the State Claims Agency on behalf of the State.

The State Claims Agency had, until recently, refused to release any information on these allegations.

There have been appeals from the Fianna Fail political party and the Oireachtas Justice Committee for the State Claims Agency to make available a detailed breakdown of all sexual harassment claims made against separate public sector bodies. This comes after the initial refusal by the State Claims Agency to publish such a breakdown, by employer and sector, of all the sexual harassment allegations which it operates for the State.

Additionally, in November The Oireachtas Justice and Equality Committee wrote to Minister for Justice Charlie Flanagan asking him to get behind a request for the data to be released to the public. As a result of this the State Claims Agency made available a small amount of information on the amount of claims. However, it did not reveal where the claims came from.

In a statement issued it was revealed that the State Claims Agency has managed 11 claims of sexual harassment in the workplace, which it said was “referable to three State Authorities, inclusive of all Delegated Healthcare Agencies, in the years 2012 to 2016”.

It also revealed that in six of the cases they’ve handled the alleged assailant and victim are both staff members. In the other five cases they said the person believed responsible for the assault was a service user in the healthcare area and the victim was a member of staff.

Compensation Claims Against the State Up by Almost a Fifth

Posted: October 21st, 2017

A recent report issued by the State Claims Agency has shown that there was a rise in the cost of compensation claims taken against the State, bringing the overall cost of these compensation actions to almost €2.2 billion last year.

This is equivalent to 22% increase on the 2016 figures according to the agency responsible for legal actions taken against the State.  The total number of cases encountered throughout 2016 was 8,900 up to the end of the year, up from 6,000 in 2015.

Main Factors Behind the Increase in Compensation Paid Out by the State

  1. The Department of Education settled/paid out legal compensation claims for an estimated €50 million.
  2. €1.9 billion of the €2.2 billion overall State compensation paid out was by Tusla and the Health Service Executive (HSE).
  3. Any individual who is successful in a legal action is now entitled to a higher pay out following a Supreme Court ruling to make up for falling returns on the cash awarded.
  4. The Department of Justice and Defence paid out State compensation claims worth around €175 million compared to €27 million of compensation claims for the Department of Health.

The State Claims Agency, part of the National Treasury Management Agency (NTMA), was established to address the continual increases in compensation actions being made against the State.

Séamus McCarthy Comptroller and Auditor General for the NTMA commented on the increase of 22% saying “The number of claims under management has increased significantly since 2011”.

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