Do You Know Your Employment Rights?
Why you should never lodge your own claim without legal advice.
Both employers and employees need to keep up-to-date in relation to the changes that have occurred in Irish employment law in recent years. Up to recently there were 5 venues for an application for an employee who sought to have the rights enforced. This was an unwieldy system and the Workplace Relations Commission was set up to reduce the venues dealing with Employment Law.
As a result there are now just 2 areas where an application can be made for any type of Employment Law issue. These are to an Adjudication Officer and to the Labour Court.
These two bodies replace the Rights Commissioner and the former Employment Appeals Tribunal.
The application for any relief for employment rights has to be lodged online by filling in a quite detailed and complex form. To add to the complication although the Workplace Relations Commission (WRC) operates in Dublin the office to lodge the application is in Carlow.
The system is in operation for over 12 months now. Problems have emerged. The younger generation might be more computer literate than an older generation. All applicants must be very careful in relation to the completion of the online form to make application for reliefs which the Act provides for them. In some cases where a person decides to submit their own application thinking they have completed all and they come to a hearing they have discovered that they have not made a claim under the right section or worse omitted the area which they have a genuine claim.When the matter comes before the Adjudication Officer by way of an informal hearing they discover that they have not claimed under the right section of the right Act and their claim fails.
Where a correct Terms and Conditions of Employment were not given to the employee within two months of commencing Employment is one of the headings under which a claim can be made.
Most Employers would rely on the 1994 Act which outlines the headings which are necessary in this notice. Here are the key areas an Employee needs to know.
- The name and address of place of work.
- The title of the job.
- The date of commencement whether temporary or permanent.
- Pay details
- When paid and how the pay is calculated,
- Hours and conditions of work
- Provisions for sickness and pensions
What most employers or employees don’t know is that after the Organisation of Working Time Act ( OWTA) arrived extra headings are required to advise employees. These relate to breaks during the working day and notice of change of hours which were not part of Irish Employment Law up to that. Employers can be caught out on this if a claim is brought under this legislation.
Employers don’t have to in law give a Contract of Employment but they must give these Terms and Conditions of Employment.
The Organisation of Working Time Act provides for breaks and notification to employees of change in working hours. The catering and hospitality industry are notorious for long hours worked by employees and very often no notice is given nor breaks applied in the business as their employees are expected to keep working. A recent case in Mayo involved a cleaner in a Factory who was regularly working 80 hours a week as he felt he had to to keep his job.This is a clear breach of the OWTA Provisions.
Remember each time you don’t get a break it is a breach of the Act and a separate claim. In simple terms if an employee discovers that they have not received their breaks in accordance with the legislation they are entitled to lodge an application for each and every breach of the Act.
Employers for their part must keep detailed records of breaks taken whether the day is divided into shifts or standard 8 hour day. The more enlightened employers have a system for checking out for the break and checking back in either by fingerprint recognition or some modern system to clearly show they are compliant with the legislation.
The catering industry also does not always pay for Sunday and Public Holiday extra payments and very often for persons who are not familiar with the Irish legislation even though it has taken from European Law they can find they are not been paid properly or under paid during their employment.
The previous application to the Rights Commissioner was simply completing a form T1 which was simple and straightforward. The new form online has a number of drop-down menus and if an employee wishes to lodge a claim under a number of headings each must be carefully assessed where the application information is installed and sufficient detail given to ground the claim.
Even for experienced Employment Law practitioners we have had to get used to this new online form. The advice we have and we follow is that not only do we send the online application in but we send a printout copy to the Carlow office by Registered Post enclosing a letter outlining the headings in which the claims are made so that there can be no doubt at what and on which the applications are made.
There is a standard 6 month period within which an application should be made. In certain circumstances this may be extended but you will need a good reason why an application was not brought within that time limit. Ignorance of the Law will not be accepted.
In summary the employee who feels they have a right to claim should immediately seek legal advice on their situation.
As always if you effected by any of these issues please get in touch