Workplace Solicitor News
Posted: December 3rd, 2018
It has been reveal than in excess of 110 incidents of tram or train “surfing” have been recorded by Irish Rail and on Luas services since 2014.
The dangerous activity hit the headlines in October when 20-year-old Rebecca Kelly received €550,000 in compensation after suffering a severe brain injury after clinging on to a Luas carriage. Ms Kelly fell back onto the tracks and banged her head on the ground before some people dragged her out of the way of an oncoming tram.
A Freedom of Information request has revealed that there have been 35 cases of tram surfing on Luas services in the past four years. On the Green Line that travels from Dublin City Centre to South Co Dublin recorded incidents have been more sporadic. There were none recorded in 2015 but then there were 13 throughout 2016.
Spokeswoman for Transdev, which operates both lines, Ms Dervla Brophy said the incidents of tram surfing are low. She stated: “Tram surfing can be fatal. We have had a very small number of incidents of people trying to ‘scut’ and all staff are trained to be vigilant, observe and report. The public have reported [cases] too. Any activity or even potential concern that is reported – trams will be stopped, security and or gardai called. The risk of serious injury is very high.”
She added: “We show CCTV of various incidents that have occurred along the lines. The purpose is to request parents know where their kids are and if they are on the lines, they’re aware just how dangerous their playground might be.”
A separate Freedom of Information request has lead to Irish Rail releasing figures detailing 87 incidents of train surfing since 2016. Of the incidents recorded in the last 36 months, twelve were on the Northern commuter route connecting Dublin and Dundalk. The incidents in question occurred exclusively on the Dart service.
Irish Rail spokesperson Barry Kenny said: “On board staff, station staff and security personnel are vigilant in ensuring we respond with security or garda support. Extra security patrols this year are yielding a reduction in the number of incidents.”
Irish Rail said it had modified the original Dart fleet of 76 carriages during refurbishment to make headlight units more difficult to grasp onto.
Posted: November 23rd, 2018
Garda Ronan Leonard has been awarded €8,000 workplace injury compensation at the High Court due to a soft tissue shoulder injury which he sustained while in pursuit of a suspect as part of his work duties.
The compensation legal action that was submitted by Garda Leonard sought €20,000 Garda workplace injury compensation against the Minister for Public Expenditure and Reform. Garda Leonard suffered the shoulder injury in the fall that occurred on July 11, 2014, while he was chasing the suspect.
In the aftermath of the fall Garda Leonard attended with an out-of-hours doctor service and, from here, he was sent to an Accident and Emergency hospital department. The X-rays that were conducted show that Garda Leonard suffered no bone breaks. Garda Leonard was allowed to go home with a prescription for painkillers and anti-inflammatories. Due to the injury in the fall he could not attend work for a period of five days.
Due to constant pain Garda Leonard was suffering with, he went to his local Doctor where he was diagnosed with a sprain to the joint at the top of his left shoulder. His doctor treated him a steroid injection and a course of anti-inflammatories. Due to the pain remaining Garda Leonard was treated with the same medication and steroid injection in October 2014.
The High Court was advised that Garda Leonard has now fully recovered from the soft tissue injury. Additionally, the Court was informed that he has never previously claimed under the Garda Compensation Acts.
Legal representatives for Garda Leonard told the High Court that he should be awarded €20,000 workplace injury compensation based on the Book of Quantum. However, the Judge ruled that €8,000 was the appropriate figure of compensation, plus €60 agreed special damages. He, the Judge, went on to say that as part of his ruling, that the appropriate figure is €8,000 due to the recent binding decisions of the Court of Appeal in relation to personal injury cases. This decision directed that a downwards recalibration of damages for personal injury workplace compensation actions of approximately 45-50% must be applied.
The Judge also stated that €8,000 Garda work injury compensation was the proper figure for Garda Leonard and proportionate to the injuries in question.
Posted: October 17th, 2018
Following being attacked by his no brother-in-law outside a Letterkenny nightclub, a Garda has been awarded €4,000 workplace injury compensation.
Garda Fintan Smith told High Court Judge Justice Michael Twomey that he was attacked and headbutted by the man. The initial attack left him with a black eye and nose bleed and lead to him falling on the footpath. Following this Garda Smith was sitting in the front seat of the Garda car and the attacker restrained in handcuffs in the back seat, awaiting transfer to Letterkenny Garda Station. At this point Garda Smith was kicked to the side of his head by the same man.
Garda Smith informed Judge Twomey that he no longer maintains a relationship with his now brother-in-law. He does have excellent relations with the other members of his wife’s family. Earlier in 2017, Garda Smith married his girlfriend and his attacker had been invited to the celebration but he did not attend on the day. In the aftermath of the incident Garda Smith said that he does his best to avoid any family occasion if he knows that his brother-in-law is also planning to be present.
Ms Fiona Crawford, legal counsel for Garda Smith, told the High Court her client had sustained an injured nose. X-rays showed that Garda Smith had not sustained a bone injury.
The incident, the High Court was told, had lead to a major amount of tension between Garda Smith and his then girlfriend. He was unable to attend work for a month due to the embarrassment the episode caused him. He said that he felt a lot of anger for a while after the attack. He then requested, and received, a transfer from Letterkenny to Ballybofey Garda Station. Garda Smith told the Judge that his now brother-in-law had been a known troublemaker when the attack occurred and was not the type of person who would respect the gardai.
In awarding workplace compensation of €4,000 for the injuries Garda Smith suffered, Judge Twomey stated that he believed Garda Smith’s opinion that brother-in-law had a negative attitude towards gardai.
Posted: September 7th, 2018
The Workplace Relations Commission (WRC) has upheld an unfair dismissal claim of a waitress who was on the spot due to a customer posting a negative comment on TripAdvisor complaining that “the red-haired waitress was abrupt”. The restaurant has been ordered to pay her €2,000 compensation.
The restaurant manager advised the WRC that he concurred with the waitress’s account regarding the dismissal and added that he had received an additional two complaints from customers and a further 20 complaints from other employees. He also accepted that he did not advise the waitress of these other complaints when he he advising he that her position of employment was terminated.
WRC Adjudication Officer Máire Mulcahy issued a ruling which stated that the use of the TripAdvisor review and the 20 alleged complaints “is not far short of mob rule in the workplace” when the waitress was not given the chance to examine the authenticity of them.
The ruling said that the “vox-pop” type comment on TripAdvisor that “the waitress with the red hair was abrupt” which the restaurant used as the basis to sack her “is very far removed” from the concept of “substantial grounds” to justify a dismissal as required by the Unfair Dismissal Act. Ms Mulcahy added that the waitress’s description of how her dismissal occurred is not being argued.
She said said: “There was no disciplinary procedure in the workplace. There was no process. No advance notice, no examination of the alleged complaints, no opportunity to be accompanied at the meeting which resulted in her dismissal, or right of appeal was afforded to the complainant.”
Ms Mulcahy stated that the waitress was denied a proper judicial process regarding her sacking.
The defendant advised the WRC, in her testimony that she feels that the real reason she was sacked was due to the support she gave to the manager’s partner in the break-up of their relationship.
The final WRC report on the case said that the restaurant boss has said sorry to the waitress for his actions.
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.
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.”
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.
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.
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.
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.