employment obligations of small business speaker: jim curran head of research & information...

EMPLOYMENT EMPLOYMENT OBLIGATIONS OF SMALL OBLIGATIONS OF SMALL

BUSINESSBUSINESS

Speaker: Jim Curran Speaker: Jim Curran Head of Research & Information Head of Research & Information

Services, ISMEServices, ISME

The Independent Business Organisation

EMPLOYMENT LAW COMPLIANCE EMPLOYMENT LAW COMPLIANCE BILL 2008BILL 2008

• Establishment of National Employment Establishment of National Employment Rights Authority (NERA)Rights Authority (NERA)

• Strengthening labour inspection powersStrengthening labour inspection powers

• REA Electrical Contract IndustryREA Electrical Contract Industry

• Joint investigations with other agenciesJoint investigations with other agencies

• Increased penaltiesIncreased penalties

• Notices/PublicationNotices/Publication

• RecordsRecords


NATIONAL EMPLOYMENT NATIONAL EMPLOYMENT RIGHTS AUTHORITY RIGHTS AUTHORITY (NERA)(NERA)

• InformationInformation

• InspectionInspection

• EnforcementEnforcement

• ProsecutionProsecution


NERA INSPECTIONSNERA INSPECTIONS

WHAT TRIGGERS AN INSPECTION?WHAT TRIGGERS AN INSPECTION?

• AnnouncedAnnounced

• UnannouncedUnannounced

• ComplaintsComplaints

• SectoralSectoral


POWERS OF INSPECTIONPOWERS OF INSPECTION

• To enter any premises at a reasonable time To enter any premises at a reasonable time

• To demand sight of records To demand sight of records

• To inspect records To inspect records

• To take copies of records To take copies of records

• To interview and require information from To interview and require information from any relevant personany relevant person

• Exchange data with other agenciesExchange data with other agencies

• Initiate legal proceedings if necessaryInitiate legal proceedings if necessary


RECORDS TO BE AVAILABLE FOR RECORDS TO BE AVAILABLE FOR INSPECTION.INSPECTION.

• Employer Employer Registration NumberRegistration Number

• Employee PPS Employee PPS NumberNumber

• Terms of Terms of EmploymentEmployment

• Pay details/payslipsPay details/payslips

• National Minimum National Minimum WageWage

• Job classificationJob classification

/commencement//commencement/terminationtermination

• Hours of WorkHours of Work

• Holidays/public holidaysHolidays/public holidays

• Under 18sUnder 18s

• Work PermitsWork Permits

• Any document to Any document to demonstrate demonstrate compliancecompliance


TERMS OF EMPLOYMENTTERMS OF EMPLOYMENT

Terms of Employment Terms of Employment (Information) Act 1994-2001(Information) Act 1994-2001

• New & Existing EmployeesNew & Existing Employees• Application of ActApplication of Act

– Contract of EmploymentContract of Employment– ApprenticeshipApprenticeship– Employment AgencyEmployment Agency– StateState


WHAT MUST BE INCLUDED

• Full names of the employer and employee• Place of Work and address of the employer• Title of the job or nature of the work • Date of commencement of employment• If temporary/fixed contract-duration &

expiry date.• The rate and method of calculation of the

employees remuneration• Pay reference/frequency period


WHAT MUST BE INCLUDED WHAT MUST BE INCLUDED (Contd)(Contd)

• Any terms relating to hours of work (including Any terms relating to hours of work (including overtime & breaks) overtime & breaks)

• Any terms relating to leave (including Any terms relating to leave (including holidays, sick leave etc.)holidays, sick leave etc.)

• Pension details if applicablePension details if applicable• Notice of termination Notice of termination • Dismissal ProcedureDismissal Procedure• Any collective bargaining agreements. E.G. Any collective bargaining agreements. E.G.

JLC.JLC.• RecordsRecords


ADDITIONAL TERMSADDITIONAL TERMS

•Probationary periodProbationary period •Lay-offs/short-timeLay-offs/short-time •Retirement AgeRetirement Age •Bullying/Harassment PolicyBullying/Harassment Policy •Discipline/Grievance Discipline/Grievance

ProcedureProcedure


SAMPLE CONTRACT OF SAMPLE CONTRACT OF EMPLOYMENTEMPLOYMENT

Date __________Name __________Address _________Address __________

Dear ____________I am pleased to offer you an appointment to our staff. You are being offered a position in our ___________ department.This offer of employment is subject to the following terms: Commencement DateYour appointment will commence on the _______________ and will not continue beyond your 65th Birthday. Probationary PeriodYou will be required to satisfactorily complete a six-month probationary period of employment. During the probationary period, employment may be terminated at the Company’s absolute discretion. In such case you will be entitled to 1 week’s notice, after the completion of 13 weeks service.

LocationThe company premises are at ______, where you shall be presently employed, however you may be relocated in the future and you will be given notice prior to this occurring. Position/TitleYour position will be _________________Your manager will be_________________DutiesYour duties will include _____________ and any other duties you may be assigned.SalaryYour salary will be €____________ per annum

Hours of WorkThe company operates from _________ to _________. Work hours are from _______to ________. You will be paid on the last Friday of the month by direct debit.

Break entitlements are _________ in the morning and ______ for lunch.Where, due to circumstances outside the control of the Company, there is insufficient work, the Company reserves the right to place staff on Lay Off or Short Time working. In such circumstances the Company will give as much notice as is practicable. Selection for Lay Off or Short Time working will be dependent on operational needs.

Holiday EntitlementsYour holiday entitlements will be_________ days per annum together with all statutory public holidaysOn termination of employment, holiday entitlement will be calculated to the nearest full month worked. If you have already taken holidays in excess of your entitlement this will be deducted from the final salary.IllnessIf you are unable to come to work due to illness you must inform your __________, or the ____________ department within 1 hour of your starting time on the first day, giving some indication of the reason for absence and the likely date of return. If your absence is going to exceed two days you should forward a doctor’s certificate to the company on the third day. Certificates should be furnished on a weekly basis thereafter.

Sick Pay The Company does not operate a sick pay scheme Termination

Notice of termination of employment by either you or the company will be _______(mth/wk) or such further period as may be required by the Minimum Notice and Terms of Employment Acts, 1973 & 2001. PensionsEmployees who have at least 6 months service in the Company can set up or contribute to a PRSA through payroll deductions. The Company has appointed ___________ as PRSA provider.Dismissal ProcedureWhere the Company is considering the termination of employment the employee concerned will be advised of the reasons giving cause to consider this action and afforded the opportunity to respond to such reasons, before any decision is made. The employee will be advised prior to the meeting of the purpose of the meeting and, in the case of disciplinary action, be allowed to have a work colleague/ representation with them if they so wish.LawIrish Law shall govern this agreement and disputes arising under or about it should be subject to the exclusive jurisdiction of the Irish Courts.Terms of Employment (Information) Acts 1994 & 2001The provisions of this letter and appendices shall constitute notice to you of your terms and conditions of employment as are required to be given to you pursuant to the terms of Employment (Information) Acts 1994 & 2001.

Please acknowledge acceptance of this offer on the terms stated by signing and returning the enclosed copy of this letter. This offer of employment will remain open until ______pm on ____________date.Yours sincerely,____________ __________________Manager (on behalf of the Company) Employee

PAYMENT OF WAGESPAYMENT OF WAGES

• Payment of Wages Acts 1991Payment of Wages Acts 1991

• Wages- What’s Included?Wages- What’s Included?– Basic pay-overtimeBasic pay-overtime– Fees/bonuses/commissionsFees/bonuses/commissions– Holiday/sick/maternity (if any) payHoliday/sick/maternity (if any) pay– Other payments connected to employmentOther payments connected to employment

• Wages- What’s not included?Wages- What’s not included?– expenses incurredexpenses incurred– pensionspensions– compensation for loss of officecompensation for loss of office– redundancy paymentsredundancy payments– Benefit in KindBenefit in Kind


PAYMENT OF WAGES (Contd)PAYMENT OF WAGES (Contd)

• Method of PaymentMethod of Payment

• - cash/cheque etc.- cash/cheque etc.

• Pay slipsPay slips– gross wagesgross wages– DeductionsDeductions

• DeductionsDeductions

• RecordsRecords


ORGANISATION OF WORKING ORGANISATION OF WORKING TIME ACT 1997TIME ACT 1997

•Hours of workHours of work

•Rest PeriodsRest Periods

•HolidaysHolidays


HOURS OF WORKHOURS OF WORK

• Weekly incl max. working weekWeekly incl max. working week– 48 hours48 hours– Can be averagedCan be averaged

• DailyDaily - 13 Hours- 13 Hours• Night WorkNight Work

– 8 hours on average over 2 months8 hours on average over 2 months– Special category workers\Special category workers\

• Part-time/on call workersPart-time/on call workers• RecordsRecords


REST PERIODSREST PERIODS

• General Rest PeriodsGeneral Rest Periods– Daily-11 consecutive hoursDaily-11 consecutive hours– Weekly- 24 hours preceded by 11 hoursWeekly- 24 hours preceded by 11 hours

• Rest BreaksRest Breaks– 15 mins for 4.5 hours worked15 mins for 4.5 hours worked– 30 mins for 6 hours worked30 mins for 6 hours worked

• Compensatory restCompensatory rest• RecordsRecords


HOLIDAYSHOLIDAYS

• Annual Leave Entitlement:Annual Leave Entitlement: -4 Working Weeks (1365 hours)-4 Working Weeks (1365 hours) -1/3 Working Week (117 hours)-1/3 Working Week (117 hours) -8% of total hours worked (max 4 weeks)-8% of total hours worked (max 4 weeks)

• Timing of Annual LeaveTiming of Annual Leave• Payment for Annual LeavePayment for Annual Leave• Leave yearLeave year• Public HolidaysPublic Holidays

– Nine Statutory Public HolidaysNine Statutory Public Holidays– Different to Bank HolidaysDifferent to Bank Holidays– Entitlement/ Full-time v Part-time / CasualEntitlement/ Full-time v Part-time / Casual

• RecordsRecords


BULLYING & HARASSMENT BULLYING & HARASSMENT POLICYPOLICY

The Employment Equality Acts 1998 & 2004The Employment Equality Acts 1998 & 2004Deals with discriminationDeals with discrimination

- includes, harassment & bullying- includes, harassment & bullyingUnfavourable treatment on the following groundsUnfavourable treatment on the following grounds - - GenderGender - Marital Status- Marital Status - Family Status- Family Status - Sexual Orientation- Sexual Orientation - Age - Age - Disability- Disability - Race - Race - Religion- Religion - Membership of the traveller community- Membership of the traveller community


Harassment“any form of unwanted conduct related to any of the discriminatory grounds, being conduct which has the purpose or effect of violating a person’s dignity and creating

an intimidating, hostile, degrading, humiliating or offensive environment for the person”

Examples- words/gestures

- production, display or circulation of material

Sexual Harassment “ unwanted conduct of a sexual nature, or conduct based

on sex, affecting the dignity of women and men at work”

Examples- acts of physical intimacy/requests for sexual favours- words or gestures-production, display or circulation of written words or

gesturesThe Independent Business Organisation

Bullying & Harassment Bullying & Harassment (Contd)(Contd)

BullyingBullyingDefinition:Definition: Workplace bullying is Workplace bullying is repeated inappropriate behaviour, repeated inappropriate behaviour,

direct or indirect, whether verbal, physical or otherwise direct or indirect, whether verbal, physical or otherwise conducted by one or more persons against another or conducted by one or more persons against another or others at a place of work and/or in the course of others at a place of work and/or in the course of employment, which employment, which could reasonably be regardedcould reasonably be regarded as as undermining the individual’s right to dignity at work. An undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a definition may be an affront to dignity at work but, as a once off incident, is not considered bullying.once off incident, is not considered bullying.

• Bullying is different to harassmentBullying is different to harassment• Clarity on what is NOT bullying at workClarity on what is NOT bullying at work


Bullying ExamplesBullying Examples

• Exclusion with negative consequencesExclusion with negative consequences• Verbal abuse/insultsVerbal abuse/insults• Physical abusePhysical abuse• Being treated less favourably than colleaguesBeing treated less favourably than colleagues• Intrusion- pestering, spying or stalkingIntrusion- pestering, spying or stalking• Intimidation/AggressionIntimidation/Aggression• Undermining behaviourUndermining behaviour• Excessive monitoring at workExcessive monitoring at work• HumiliationHumiliation• Withholding work-related informationWithholding work-related information• Repeatedly manipulating a person’s job content and Repeatedly manipulating a person’s job content and

targetstargets• Blame for things beyond person’s controlBlame for things beyond person’s control

EFFECTS OF EFFECTS OF HARRASSMENT/BULLYINGHARRASSMENT/BULLYING

Impact on IndividualImpact on Individual

• PsychologicalPsychological

- - depression, mood swings etc.depression, mood swings etc.

• PhysiologicalPhysiological

- headaches, fatigue, sleeplessness etc.- headaches, fatigue, sleeplessness etc.

• BehaviouralBehavioural

- withdrawn personality- withdrawn personality

- Forgetfulness etc- Forgetfulness etc..

Legal ConsiderationsLegal Considerations

•Employment EqualityEmployment Equality

•Constructive DismissalConstructive Dismissal

•Common LawCommon Law– Vicarious LiabilityVicarious Liability

SETTING UP A COMPANY SETTING UP A COMPANY POLICYPOLICY

Policy statementPolicy statement– in writing & circulated to all staffin writing & circulated to all staff

Should include:Should include:Definition Definition ExamplesExamplesOutline effects Outline effects Defined grievanceDefined grievanceComplaints procedure & Complaints procedure & investigation processinvestigation processDesignated contactDesignated contact


DISCIPLINARY & GRIEVANCE DISCIPLINARY & GRIEVANCE PROCEDURESPROCEDURES

Unfair Dismissal Acts 1977-Unfair Dismissal Acts 1977-20072007

• Disciplinary ProcedureDisciplinary Procedure incorporated into all incorporated into all contractscontracts

• In writing.In writing.

• Clearly understoodClearly understood

• Procedural fairnessProcedural fairness

• Adequate recordsAdequate records


Disciplinary & Grievance Procedure

• Unfair Dismissals Acts

• - > 1 Year ServiceExcept - Employee Pregnant - Maternity Protection Act 1994 - Adoptive Leave - Trade Union Membership

• Does not cover Employee - Fixed Term/Specific Purpose - Apprentice

Disciplinary & Grievance Procedures

Justify Dismissal on Following Grounds

•Capability, Competence or Qualifications

• Conduct

• Redundancy

• Unlawful Ground

• Other Substantial Grounds

CODE OF PRACTICE CODE OF PRACTICE SUGGESTED DISCIPLINARY SUGGESTED DISCIPLINARY ACTIONACTION

• An oral warningAn oral warning• A written warningA written warning• A final written warningA final written warning• Suspension without paySuspension without pay• Transfer to another task or section of Transfer to another task or section of

the enterprisethe enterprise• DemotionDemotion• Some other appropriate disciplinary Some other appropriate disciplinary

action short of dismissalaction short of dismissal


Disciplinary ProcedureDisciplinary Procedure

• General PrinciplesGeneral Principles- Right to be advised in advance of a - Right to be advised in advance of a

hearinghearing- R- Right to know the ight to know the fullfull case against them case against them- Right to respond- Right to respond- Right to representation- Right to representation- Investigation must be fair & impartial- Investigation must be fair & impartial- Employee concerned & other relevant - Employee concerned & other relevant

factorsfactors- Right to impartial appeal- Right to impartial appeal


GRIEVANCE PROCEDUREGRIEVANCE PROCEDURE

PROCEDUREPROCEDURE• Grievance initially brought to Grievance initially brought to

foreman/supervisorforeman/supervisor• No resolution then raised with No resolution then raised with

immediate managerimmediate manager• Still no resolution goes to company Still no resolution goes to company

director/MDdirector/MD• Company & employee representativesCompany & employee representatives• Rights Commissioner/LRC/Labour Rights Commissioner/LRC/Labour

Court/EATCourt/EAT


HANDLING GRIEVANCESHANDLING GRIEVANCES

• Arrange a meeting ASAPArrange a meeting ASAP• Approach the issue from a neutral Approach the issue from a neutral

point of viewpoint of view• Ascertain all factsAscertain all facts• Review & summarise all factsReview & summarise all facts• Agree a solutionAgree a solution• Follow up promptlyFollow up promptly• Communicate response & explain Communicate response & explain

clearlyclearly• Minute all meetings.Minute all meetings.


RECORDS TO BE AVAILABLE FOR RECORDS TO BE AVAILABLE FOR INSPECTION.INSPECTION.

• Employer Employer Registration NumberRegistration Number

• Employee PPS Employee PPS NumberNumber

• Terms of Terms of EmploymentEmployment

• Pay details/payslipsPay details/payslips

• National Minimum National Minimum WageWage

• Job classificationJob classification

/commencement//commencement/terminationtermination

• Hours of WorkHours of Work

• Holidays/public holidaysHolidays/public holidays

• Under 18sUnder 18s

• Work PermitsWork Permits

• Any document to Any document to demonstrate demonstrate compliancecompliance


REDUNDANCYREDUNDANCY

Redundancy Payment Acts 1967-2003Redundancy Payment Acts 1967-2003

• EligibilityEligibility - 2 years service- 2 years service

• Benefits/calculationsBenefits/calculations - 2 weeks plus one additional week- 2 weeks plus one additional week - calculating service- calculating service - social rebate - social rebate

• Selection for Redundancy Selection for Redundancy - ‘job no longer exist’- ‘job no longer exist’

Redundancy (contd)Redundancy (contd)

• Alternative positionAlternative position

• Lay-offs/short-timeLay-offs/short-time

- 4 weeks running- 4 weeks running

- 6 weeks in 13 week period- 6 weeks in 13 week period

• Minimum NotiveMinimum Notive

- 2 weeks or contract- 2 weeks or contract

• Collective redundanciesCollective redundancies

QUESTIONSQUESTIONS


Jim CurranJim Curran

ISMEISME

17 Kildare Street17 Kildare Street

Dublin 2Dublin 2

Tel: 01 6622755Tel: 01 6622755

E-mail: [email protected]: [email protected]

employment obligations of small business speaker: jim curran head of research & information...

Documents

offer of employment

sight of records

copies of records

s work permits work

powers of inspection

following terms

work date of commencement

employment law compliance