In Brief - Important Updates from April 2019

A number of useful articles and interesting case law reviews were added to the Irish Employment Law Hub throughout April 2019. In case you missed it, here is a quick recap of some of the employment law developments last month:

Procurement and Processing of CCTV Footage

In this month’s ‘How Do I Handle It?’ Article, David McCarroll, Partner in Ronan Daly Jermyn’s Employment Unit, reviews the legal position in relation to procuring and processing third party CCTV evidence for disciplinary purposes.

Sunday Working – Navigating the Law

Your key questions on Sunday work are answered by Maria Pittock, A&L Goodbody (ALG) Associate in our First Tuesday section.  

Brexit: How to Get Your Data Transfer Ducks in a Row

In this ‘Hot Topics’ article Cormac Murphy, Senior Associate Solicitor in Crowley Solicitors sets out how you can ‘Brexit-Proof’ your data transfers.

Employment (Miscellaneous Provisions) Act Update

Listen here to Linda Hynes, Partner, and Síobhra Rush, Partner, Lewis Silkin Ireland, as they answer HR professionals' questions on the Employment (Miscellaneous Provision) Act.

WRC Annual Report Published

The Workplace Relations Commission (WRC) has published its fourth Annual Report. The report has highlighted a significant increase in activity in adjudications, conciliation conferences, and mediations, relative to previous years.  It also reports that over €3m in unpaid wages for employees was recovered, an increase of 75% on 2017.

Case Law Reviews

In the recent appeal of Keelings Logistics Solutions v A Worker [2019], the Labour Court upheld the decision of the Adjudication Officer which agreed with the employer’s position that an employee’s absence due to an elective surgery was unauthorised sick leave as the employee did not comply with the company sick pay policy in advance of same.  The employee was not paid during this absence and the Adjudication Officer held that the employer’s actions were not a breach of procedure.

In Ryan, Cannon and Kirk Accounting Services limited v Violeta Kneite [2019], an employee’s failure to engage in organisational procedures to try to resolve a grievance before resigning undermined her constructive dismissal claim.

In the constructive dismissal claim of A Care Worker v A Care Provider [2019], the Adjudication Officer found that the employers delay in conducting an investigation process under the Respondent’s Trust in Care policy amounted to a repudiation of the Complainant’s contract of employment.  The extended exclusion of the Complainant from the workplace was held to amount to constructive dismissal.

Zalewski v Adjudication Officer & Ors 2019 - On 20 March 2019, the Supreme Court held that Mr. Tomasz Zalewski has the requisite locus standi to pursue his constitutional challenge in relation to certain provisions of the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977, as amended. Mr. Zalewski’s constitutional challenge will now proceed in the High Court.

Mr. Zalewski’s challenge relates to the constitutionality of the following procedures of the Workplace Relations Commission (the “WRC”):

• an adjudication officer is not required to have any particular qualification (and, in particular, no legal qualification). Mr. Zalewski contends that a court should determine any such claims;                           
• an adjudication officer is not permitted to take evidence under oath. Mr. Zalewski contends that this is in breach of constitutional justice and fair procedures;
• hearings are held otherwise than in public;
• there is no penalty for any person who gives untrue evidence; and
• the appeals process lies with a body (the Labour Court) which does not require persons to be legally qualified.

The case of Brownes of Sandymount Limited v Filippo Pollina [2019] illustrates the importance for an employer to establish that any dismissal of an employee must be justified.  The employee was advised that he was not to return to work after the 1^st January 2018.  No written explanation was provided.  Various reasons were given to the employee as to why he was dismissed which caused confusion.  The employee argued that he had not been afforded a proper process to challenge any of the various reasons given.  The court concluded that unfair dismissal had occurred owing to the absence of any substantial grounds to justify the dismissal.