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	<title>BusinessAndLegal.ie &#187; Employment Law</title>
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		<title>Working Time And Rest Periods-Organization Of Working Time Act 1997</title>
		<link>http://businessandlegal.ie/working-time-rest-periods</link>
		<comments>http://businessandlegal.ie/working-time-rest-periods#comments</comments>
		<pubDate>Wed, 09 Jun 2010 07:31:12 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[organization of working time act 1997]]></category>
		<category><![CDATA[rest periods]]></category>
		<category><![CDATA[working time]]></category>

		<guid isPermaLink="false">http://businessandlegal.ie/?p=797</guid>
		<description><![CDATA[The leave entitlements and rest periods  of employees are governed by the Organization of Working Time Act,1997 which regulates employees rights in relation to maternity leave, paternity leave,sick pay and holiday entitlements. How working time is defined is important in this regard for example what is the position for employees who are on call. This [...]


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<li><a href='http://businessandlegal.ie/the-contract-of-employment' rel='bookmark' title='Permanent Link: The Contract Of Employment'>The Contract Of Employment</a></li>
<li><a href='http://businessandlegal.ie/employment-law-employment-rights-and-duties' rel='bookmark' title='Permanent Link: Employment Law |Employment Rights And Duties'>Employment Law |Employment Rights And Duties</a></li>
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<p>The leave entitlements and rest periods  of employees are governed by the <strong>Organization of Working Time Act,1997</strong> which regulates employees rights in relation to maternity leave, paternity leave,sick pay and holiday entitlements.<br />
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How working time is defined is important in this regard for example what is the position for employees who are on call. This appears from case law to require that the employee be on call in a particular place for it to count as working time;if the employee has to be on standby but can go home for example it has been held by the courts that this is not working time. This is particularly for doctors, for example, but the same principle applies to all workers.</p>
<p>It is worth noting that the Organization of Working Time Act does not apply to the defence forces or gardai or to certain other employees such as those working in an emergency situation, people working at sea and most importantly does not apply to people who can set their own working hours.</p>
<h2>Rest Periods</h2>
<p>An employee is entitled to a rest period of at least 11 hours in every work period of 24 hours. While at work an employee is entitled to a 15 minute break every 4.5 hours and an employee can not be obliged to work for more than 6 hours without a 30 minute break.</p>
<p>In a 7 day period an employee is entitled to a rest period of at least 24 hours and employees who are required to work on Sunday must be compensated  by extra pay or paid time off or some other arrangement arrived at with the employee.</p>
<p>An employee can not be expected to work in excess of 48 hours per week; note that this is an average period and the average is calculated over 4-6 months so in any one week it is possible for the employee to work in excess of 48 hours but by law employers should not let employees to average over 48 hours per week in a 4-6 month period.</p>
<h3>Night Workers</h3>
<p>Employers can not expect or oblige night workers to work over 8 hours in a 24 hour period; a night worker is a worker who works at least 3 hours post midnight as night work is considered to be from midnight to 7 am.<br />
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<p>Related posts:<ol><li><a href='http://businessandlegal.ie/terms-of-employment' rel='bookmark' title='Permanent Link: Terms of Employment'>Terms of Employment</a></li>
<li><a href='http://businessandlegal.ie/the-contract-of-employment' rel='bookmark' title='Permanent Link: The Contract Of Employment'>The Contract Of Employment</a></li>
<li><a href='http://businessandlegal.ie/employment-law-employment-rights-and-duties' rel='bookmark' title='Permanent Link: Employment Law |Employment Rights And Duties'>Employment Law |Employment Rights And Duties</a></li>
</ol></p>]]></content:encoded>
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		<title>Payment of Wages-The Legal Position</title>
		<link>http://businessandlegal.ie/payment-of-wages-the-legal-position</link>
		<comments>http://businessandlegal.ie/payment-of-wages-the-legal-position#comments</comments>
		<pubDate>Tue, 08 Jun 2010 17:51:57 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[employment appeals tribunal]]></category>
		<category><![CDATA[payment of wages]]></category>
		<category><![CDATA[payment of wages act 1991]]></category>
		<category><![CDATA[rights commissioner]]></category>

		<guid isPermaLink="false">http://businessandlegal.ie/?p=794</guid>
		<description><![CDATA[The payment of wages in the employment contract is governed by the Payment of Wages Act, 1991 and this piece of legislation stipulates that wages be paid by cheque, cash, draft, credit transfer and postal order. The employer is obliged to provide a written statement of wages and deductions at the time of payment. There [...]


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<li><a href='http://businessandlegal.ie/terms-of-employment' rel='bookmark' title='Permanent Link: Terms of Employment'>Terms of Employment</a></li>
<li><a href='http://businessandlegal.ie/commercial-borrowing-and-lending-the-legal-position' rel='bookmark' title='Permanent Link: Commercial Borrowing and Lending-The Legal Position'>Commercial Borrowing and Lending-The Legal Position</a></li>
</ol>]]></description>
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<p>The <strong>payment of wages</strong> in the employment contract is governed by the <strong>Payment of Wages Act, 1991</strong> and this piece of legislation stipulates that wages be paid by cheque, cash, draft, credit transfer and postal order.<br />
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The employer is obliged to provide a written statement of wages and deductions at the time of payment.</p>
<p>There are only a few situations where deductions may be made from the emplyee&#8217;s wages and these situations include 1) if the law requires it, 2) if provision is made for the deduction in the contract of employment and 3) where the employee has given written consent for the deduction.</p>
<p>The act also goes on to say that where an employee is shortchanged or not paid at all, then the shortage will be considered by the act to be a deduction which is unlawful. Any employee who has a problem in this regard can make a complaint to the Rights Commissioner (within 6 months) and the <strong>Rights Commissioner</strong> can make an order directing the employer to make payment up to twice the net amount of wages that should have been made to the employee.</p>
<p>Any decision of the Rights Commissioner can be appealed to the <strong>Employment Appeals Tribunal</strong> and from there to the High Court, but only on a point of law in relation to the latter appeal. It is worth noting that a decision of a Rights Commissioner or a decision of the Employment Appeals Tribunal has the same force as an order of the Circuit Court.</p>
<p>Any term in an employment contract which seeks to limit or exclude the operation of the Payment of Wages Act, 1991 is void and won&#8217;t be recognised.</p>


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<li><a href='http://businessandlegal.ie/terms-of-employment' rel='bookmark' title='Permanent Link: Terms of Employment'>Terms of Employment</a></li>
<li><a href='http://businessandlegal.ie/commercial-borrowing-and-lending-the-legal-position' rel='bookmark' title='Permanent Link: Commercial Borrowing and Lending-The Legal Position'>Commercial Borrowing and Lending-The Legal Position</a></li>
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		<title>The Contract Of Employment</title>
		<link>http://businessandlegal.ie/the-contract-of-employment</link>
		<comments>http://businessandlegal.ie/the-contract-of-employment#comments</comments>
		<pubDate>Tue, 08 Jun 2010 17:02:00 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[contract of employment]]></category>
		<category><![CDATA[employment contract]]></category>
		<category><![CDATA[express terms]]></category>
		<category><![CDATA[implied terms]]></category>
		<category><![CDATA[terms of employment act 1994]]></category>

		<guid isPermaLink="false">http://businessandlegal.ie/?p=787</guid>
		<description><![CDATA[The contract of employment in Ireland is made up of both express terms and implied terms with the Terms of Employment (Information) Act, 1994 stipulating that certain basic information must be given to the employee in writing. // This includes the names and addresses of both employer and employee, the place of work, the title [...]


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<li><a href='http://businessandlegal.ie/termination-of-employment' rel='bookmark' title='Permanent Link: Termination of Employment'>Termination of Employment</a></li>
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<p>The <em><strong>contract of employment</strong></em> in Ireland is made up of both express terms and implied terms with the <strong>Terms of Employment (Information) Act, 1994</strong> stipulating that certain basic information must be given to the employee in writing.<br />
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This includes the names and addresses of both employer and employee, the place of work, the title of the job, pay, any terms relating to sick pay, periods of notice and many other basic details.</p>
<h3>Implied Terms</h3>
<p>In every contract of employment, written or otherwise, there are 4 categories of implied terms which fall under the headings of<br />
a) terms implied by custom/practice(depending on the industry)<br />
b) terms implied by statute (right to redundancy, right not to be unfairly dismissed)<br />
c) terms implied by law (employers duty of care and employees duty of trust and confidence)<br />
d) collective agreements in unionized employment.</p>
<h3>Express Terms of Employment</h3>
<p>The express terms of employment set out below is a pretty extensive list but it should provide a decent check list of what should be included in a contract of employment and be contained in writing in the contract.<br />
1. Who-the employer and employee<br />
2. When-when does employment start<br />
3. What-what is the job role<br />
4. Hours-hours of work?<br />
5. Where-the workplace<br />
6. Is there a period of probation? For how long?<br />
7. Pay-the salary package<br />
8. Holidays-what is the position re holidays and is there extra days over and above those set down by statute in the Organization of Working Time Act,1997<br />
9. Sick pay-what is the situation re sick pay<br />
10. Retirement age<br />
11. Pension<br />
12. Disciplinary and grievance procedure<br />
13. Any restrictions re competition and setting up against the employer in the future using trade secrets/contacts<br />
14. Notice re termination of employment<br />
15. Email and internet use</p>
<p>This list is not exhaustive but should give a good basis for both employer and employee when it comes to negotiating an employment contract.<br />
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<p>Related posts:<ol><li><a href='http://businessandlegal.ie/terms-of-employment' rel='bookmark' title='Permanent Link: Terms of Employment'>Terms of Employment</a></li>
<li><a href='http://businessandlegal.ie/employment-law-employment-rights-and-duties' rel='bookmark' title='Permanent Link: Employment Law |Employment Rights And Duties'>Employment Law |Employment Rights And Duties</a></li>
<li><a href='http://businessandlegal.ie/termination-of-employment' rel='bookmark' title='Permanent Link: Termination of Employment'>Termination of Employment</a></li>
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		<title>Unfair Dismissal &#124; Unfair Dismissals In Ireland</title>
		<link>http://businessandlegal.ie/unfair-dismissal-unfair-dismissals-in-ireland</link>
		<comments>http://businessandlegal.ie/unfair-dismissal-unfair-dismissals-in-ireland#comments</comments>
		<pubDate>Wed, 02 Jun 2010 20:36:13 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[unfair dismissal]]></category>
		<category><![CDATA[constructive dismissal]]></category>
		<category><![CDATA[unfair dismissals]]></category>
		<category><![CDATA[unfair dismissals act]]></category>

		<guid isPermaLink="false">http://businessandlegal.ie/?p=750</guid>
		<description><![CDATA[Unfair dismissal in Ireland is governed by the Unfair Dismissals Act 1993 and two points need to be made about this legislation at the outset- 1. an employer must have substantial grounds for dismissing an employee 2. in doing so the employer must apply fair procedures to the process. // The Unfair Dismissals Act covers [...]


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<li><a href='http://businessandlegal.ie/termination-of-employment' rel='bookmark' title='Permanent Link: Termination of Employment'>Termination of Employment</a></li>
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<p><strong>Unfair dismissal</strong> in Ireland is governed by the Unfair Dismissals Act 1993 and two points need to be made about this legislation at the outset-<br />
1.	an employer must have substantial grounds for dismissing an employee<br />
2.	in doing so the employer must apply fair procedures to the process.<br />
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The <strong>Unfair Dismissals Act</strong> covers people who have been in employment for at least 52 weeks continuous service. Employees who are not covered include FAS trainees, members of the Defence Forces and Gardai and civil servants.</p>
<p>It may seem blindingly obvious but only employees may use the legislation in respect of a termination of employment-sub contractors for example would not be covered.</p>
<h2>Constructive Dismissal</h2>
<p>An employee may succeed in a claim for constructive dismissal in circumstances where the employee resigns the employment as a result of the employer’s conduct towards the employee. Circumstances giving rise to this situation include a reduction in pay, a deterioration in the working environment, change of job roles, unwarranted warnings, change of location of the job and many others. Not all of these situations will always give rise to a successful claim for constructive dismissal but these are the kinds of things that employers must be very careful about if they don’t want to end up in the Employment Appeals Tribunal.</p>
<p>However employees on probation up to a period of one year are excluded from the protection of the legislation.</p>
<h2>Unfair Dismissals</h2>
<p>There are a number of categories of dismissals which the Unfair Dismissals Act 1977 and 1993 deem to be automatically unfair. They are<br />
1.	trade union membership<br />
2.	the colour, race or sexual orientation of the employee<br />
3.	the employee’s religious or political opinions<br />
4.	where the employee is involved in legal action against the employer<br />
5.	the employee’s age<br />
6.	the fact that the employee is a member of the traveling community<br />
7.	the employee becoming pregnant<br />
8.	the employee taking part in industrial action.</p>
<p>These are the main grounds which the legislation deems to give rise to an unfair dismissal claim and are deemed by the law to be automatically unfair.</p>
<h3>Redundancy Defence</h3>
<p>The employer has a defence in the form of redundancy but he must be able to show that the employee has been fairly selected for redundancy. However if the employer seeks to employ the redundancy defence he can expect that if an unfair claim is made against him he will find that his redundancy defence is put under a fair degree of scrutiny.</p>
<p>For example, it is not enough that the employer can show that his workforce numbers requirement is expected to decline some time in the future-he must be able to show that is requirements will lower in the very near future to the redundancy that he has just carried out.</p>
<h2>Fair Procedure</h2>
<p>The Employment Appeals Tribunal is very strong on fair procedure in relation to the termination of an employee’s job; they have held many times in the past that if they find that fair procedure was not followed then they will deem the dismissal to be unfair, regardless of the circumstances.<br />
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<li><a href='http://businessandlegal.ie/termination-of-employment' rel='bookmark' title='Permanent Link: Termination of Employment'>Termination of Employment</a></li>
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		<title>Employment Rights</title>
		<link>http://businessandlegal.ie/employment-rights</link>
		<comments>http://businessandlegal.ie/employment-rights#comments</comments>
		<pubDate>Wed, 10 Mar 2010 22:17:05 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[top-menu]]></category>
		<category><![CDATA[employment rights]]></category>

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		<description><![CDATA[Employment rights Related posts:Employment Law &#124;Employment Rights And Duties The Contract Of Employment Terms of Employment


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<li><a href='http://businessandlegal.ie/the-contract-of-employment' rel='bookmark' title='Permanent Link: The Contract Of Employment'>The Contract Of Employment</a></li>
<li><a href='http://businessandlegal.ie/terms-of-employment' rel='bookmark' title='Permanent Link: Terms of Employment'>Terms of Employment</a></li>
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<p><a href="http://businessandlegal.ie/employment-law-employment-rights-and-duties">Employment rights</a></p>


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<li><a href='http://businessandlegal.ie/the-contract-of-employment' rel='bookmark' title='Permanent Link: The Contract Of Employment'>The Contract Of Employment</a></li>
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		<title>Find A Job-6 Great Places To Check Out</title>
		<link>http://businessandlegal.ie/find-a-job</link>
		<comments>http://businessandlegal.ie/find-a-job#comments</comments>
		<pubDate>Tue, 02 Feb 2010 08:49:39 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[job hunting]]></category>
		<category><![CDATA[jobs]]></category>
		<category><![CDATA[jobs online]]></category>

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		<description><![CDATA[Finding a job is one thing that is on many peoples minds these days. With the economy the way it is, perfecting your job search and interviewing skills can be crucial. There are many ways to go about finding job listings and determining whether or not they are right for you. 1 Newspaper Situations Vacant [...]


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<li><a href='http://businessandlegal.ie/online-business-opportunities-some-options' rel='bookmark' title='Permanent Link: Online Business Opportunities-Some Options'>Online Business Opportunities-Some Options</a></li>
<li><a href='http://businessandlegal.ie/work-permits-big-changes-in-ireland' rel='bookmark' title='Permanent Link: Work Permits-Big Changes in Ireland'>Work Permits-Big Changes in Ireland</a></li>
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<p> Finding a job is one thing that is on many peoples minds these days.  With the economy the way it is, perfecting your job search and interviewing skills can be crucial.</p>
<p>There are many ways to go about finding job listings and determining whether or not they are right for you.</p>
<h3>1 Newspaper Situations Vacant</h3>
<p>One tried and true method for finding available jobs is by using the good old newspaper!  Search the classifieds every few days to see if any listing draws your attention.  If a number is listed, contact the business to obtain more information.  This is something you can do during your morning breakfast, or in the evenings as you relax.</p>
<h3>2. Library</h3>
<p>Your local library is another good place to look.  Many libraries have information about local, state, and governmental jobs that have openings.  These are particularly great jobs to hold.   Stop by your city’s library to get information on these jobs and how you can apply to them.</p>
<h3>3. Government Offices</h3>
<p>There are also many government offices that provide assistance to job seekers.  The government itself hires people for local, state, and government jobs like post office workers. Stopping at any of the many offices in your area will be a worthwhile trip.</p>
<h3>4. Employment Agencies</h3>
<p>Employment agencies are often hired by companies to find qualified workers.  They work to find both temporary and permanent jobs.  These agencies often place the ads we see in the newspapers.  Otherwise, they can be found in many phone directories.</p>
<h3>5. Internet Jobs</h3>
<p>In addition to looking in listings in the news and through agencies, there are websites online that specialize in helping people with their job searches.  Monster.com is a great example.  They attempt to pair job seekers with available jobs that meet their criteria.   These can meet your job hunting needs if you have time to look through them and fill out profiles.</p>
<h3>6. Networking</h3>
<p>Of course, networking always works wonders and opens up opportunities.  As the saying goes, it’s not what you know, it’s who you know.  Getting your name out there and building relationships is a great way to get references, internships, and great jobs.  These work nicely because the employer has the reference of a person they actually know to base their decision off of.  This serves as a great advantage for you.</p>
<p>Job hunting can be a frustrating task, especially under such pressure.  But there are numerous options available to help with the search.  Being persistent, having a good resume, and doing well on interviews will also aid your success.<br />
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<p>Related posts:<ol><li><a href='http://businessandlegal.ie/employment-law-employment-rights-and-duties' rel='bookmark' title='Permanent Link: Employment Law |Employment Rights And Duties'>Employment Law |Employment Rights And Duties</a></li>
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		<item>
		<title>Employers Obligations to Employees</title>
		<link>http://businessandlegal.ie/employers-obligations-to-employees</link>
		<comments>http://businessandlegal.ie/employers-obligations-to-employees#comments</comments>
		<pubDate>Sun, 27 Sep 2009 09:02:42 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[safety st work]]></category>
		<category><![CDATA[termination of employment]]></category>
		<category><![CDATA[workplace safety]]></category>

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		<description><![CDATA[For small business and entrepreneurs in Ireland, it is critical that they are aware of the law covering termination of employment and safety in the workplace for employees. Termination of employment covers such areas as redundancy, dismissal, unfair dismissal and the procedures that must be employed by the employer. There are big changes on the [...]


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<li><a href='http://businessandlegal.ie/employment-law-employment-rights-and-duties' rel='bookmark' title='Permanent Link: Employment Law |Employment Rights And Duties'>Employment Law |Employment Rights And Duties</a></li>
<li><a href='http://businessandlegal.ie/termination-of-employment' rel='bookmark' title='Permanent Link: Termination of Employment'>Termination of Employment</a></li>
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<p> For small business and entrepreneurs in Ireland, it is critical that they are aware of the law covering termination of employment and safety in the workplace for employees.</p>
<p><a href="http://businessandlegal.ie/termination-of-employment">Termination of employment</a> covers such areas as redundancy, dismissal, unfair dismissal and the procedures that must be employed by the employer.</p>
<p>There are big changes on the way for <a title="Work Permits" href="http://businessandlegal.ie/work-permits-big-changes-in-ireland">work permits </a>also.</p>
<h2>Safety at work</h2>
<p>There are equally onerous obligations when it comes to providing safety at work for his/her employees.<br />
The law surrounding <a title="Workplace safety" href="http://businessandlegal.ie/wordplace-safety-an-employers-duties">safety at work</a> in particular has given very strong powers to health and safety inspectors to carry out inspections in the workplace&#8230;&#8230;.<br />
&#8230;&#8230;..and initiate prosecutions if they choose to do so.</p>
<p>Which can result in criminal penalties.</p>
<p>The consequences of a criminal record for any small business owner should not need to be spelled out. And the provision of safety at work is a moral as well as legal obligation.</p>
<h2>Termination of employment</h2>
<p>In the Ireland of 2009 termination of employment as a result of the downturn and the need to seek redundancies is a feature of many workplaces.</p>
<p>But an understanding of how to proceed with redundancy, legally, is critical&#8230;&#8230;.</p>
<p>Because the penalties that can be imposed for unfair dismissal and &#8216;fake&#8217; redundancy can be very costly. It does not have to happen if you have a basic understanding of how to terminate employment legally.</p>
<p>There are many other occasions when an employer will need to terminate the employment of an employee. Not to follow the correct procedure will prove to be a costly and needless expense for your small business.<br />
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		<title>Termination of Employment</title>
		<link>http://businessandlegal.ie/termination-of-employment</link>
		<comments>http://businessandlegal.ie/termination-of-employment#comments</comments>
		<pubDate>Thu, 24 Sep 2009 18:28:07 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[absenteeism]]></category>
		<category><![CDATA[disciplinary procedures]]></category>
		<category><![CDATA[dismissal procedure]]></category>
		<category><![CDATA[employment contract]]></category>
		<category><![CDATA[fair dismissal]]></category>
		<category><![CDATA[notice of termination]]></category>
		<category><![CDATA[redundancy]]></category>
		<category><![CDATA[termination of employment]]></category>
		<category><![CDATA[unfair dismissal]]></category>
		<category><![CDATA[unfair dismissals act]]></category>

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		<description><![CDATA[These have all become commonplace if the Ireland of 2009. It is important for any small business to have a basic understanding of the procedures and the rights of employees and employers. The most commonly litigated aspect of employment law is instances involving the termination of the employment contract itself. Although disputes are not uncommon [...]


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<p> These have all become commonplace if the Ireland of 2009. It is important for any small business to have a basic understanding of the procedures and the rights of employees and employers.</p>
<p>The most commonly litigated aspect of employment law is instances involving the <strong>termination of the employment contract</strong> itself.</p>
<p>Although disputes are not uncommon in the workplace, most will be resolved without the parties involved being compelled to terminate the employment contract.</p>
<p>However in some instances this may be the only reasonable avenue available to either or both parties.</p>
<p>Contracts of employment may be terminated in a number ways including: agreement, dismissal, repudiation and frustration.</p>
<h2>Termination of employment by Agreement</h2>
<p>As is the case with all contracts, contracts of employment may be terminated with the consent of both parties.</p>
<p>In certain circumstances a term of the contract may be inserted to deal with the termination of the contract, by means of notice by either party. In this instance it is generally understood that a certain minimum time must have elapsed prior to the term being activated.</p>
<p>An alternative means by which the contract of employment may be brought to an end involves the payment of an agreed sum, made with the intention that the contract shall be terminated forthwith.</p>
<p>In certain circumstances where the interests of both parties are served by the immediate termination of the contract of employment, then no such monies may be necessary i.e. the employer is actively seeking to cut back on staff numbers and the employee has been offered more lucrative terms with another employer.</p>
<h2>Termination of employment by Repudiation</h2>
<p>A repudiation of the employment contract occurs in circumstances whereby either party unilaterally fails to abide by the terms agreed, eg forced resignations, failure to pay remuneration, unilaterally changing the nature of the work..</p>
<p>In circumstances where an employee is the one alleged to have committed a repudiatory breach of the  employment contract, for example by means of unambiguously leaving the job at issue, the contract is not deemed to be terminated and it is still at the discretion of the employer to retain the services of the employee.</p>
<p>The reasoning behind this principle is to avoid rewarding employees who seek to prematurely end their contracts deliberately.</p>
<h2>Termination of employment by Dismissal</h2>
<p>A dismissal in legally defined as the unilateral termination of the contract of employment by the employer.</p>
<p>Where the employer fails to give adequate notice of the dismissal he/ she will be held to have repudiated on the fundamental conditions of any employment contract, payment for work completed.</p>
<p>In circumstances where an employee refuses to accept this repudiation, then he/she may elect to sue for damages for wrongful dismissal.</p>
<h2>Termination of employment by Frustration</h2>
<p>One of the more recent innovations in the law of contract is the legal principal of frustration, whereby circumstances outside of the control of either party mean that the contract comes to an end and any further contractual obligations are set aside.</p>
<p>In the context of the contract of employment, the factors accepted are inclusive of but not limited to: the destruction of the workplace, illness on the part of the employee, employee’s imprisonment or liquidation of the business.</p>
<h2>Notice of Termination</h2>
<p>One of the terms of any contract of employment will generally be the length of notice required to lawfully terminate the contract. In the event that no such clause is deemed to exist then reasonable notice must be given (this will be determined by the individual circumstances of any contract).</p>
<p>However where an employee is being dismissed for a very serious breach of contract, there is no entitlement to any notice.</p>
<p>The process whereby an employer decides to immediately terminate an employment contract is legally regarded as a summary dismissal. This power may be exercised in circumstances where the contract of employment expressly stipulates or alternatively where the employee is guilty of serious misconduct.</p>
<p>The exact factors which constitute a serious misconduct may be cited in the contract or alternatively where this is not the case, the individual circumstances of the employment may be considered. However, some actions are so nefarious as to be instantly regarded as such including: deliberately destroying the employer’s valuable property, stealing from the employer, and gross insubordination.</p>
<p>In addition to the grounds previously specified an employee’s action representing to the employer that he possessed a certain skill or qualification, which was not in fact the case, would have seriously misrepresented the situation and this action would warrant summary dismissal. However, inability to do a job may be regarded due to the employer’s inadequate training methods or to inefficient techniques for selecting employees.</p>
<h2>Dismissal Procedures</h2>
<p>In most cases the employment contract should specify or directly incorporate the manner in which dismissal procedures should be conducted.</p>
<p>Indeed statute compels all employers to issue new employees with a directive on appropriate dismissal procedures within one month on initiating employment under section 14 of the Unfair Dismissals Act 1977.In the event that this directive is altered, a minimum of 28 days notice must be given to the employee.</p>
<p>However this obligation does not apply where no agreed procedural framework was in place between the parties or the employee’s trade union or where no such procedure is based on custom and practice.</p>
<h3>Codes of Practice on Disciplinary Procedures</h3>
<p>In the advent of any dismissal procedures being initiated, the employee has a Constitutional right to expect fair procedures.</p>
<p>In essence this means that an employee must be made aware of any evidence against them and should be afforded the opportunity to respond to the allegations.</p>
<p>In the event that a breach of fair procedures is found then the courts can order that the employee be continued to be paid pending a full hearing of the action.</p>
<p>Procedures are necessary to ensure that discipline is maintained in the workplace and that disciplinary measures can be applied in a friar and consistent manner.</p>
<p>The procedures must comply with the principles of natural justice and fair procedures including</p>
<p>1. Details of the allegations or complaints are put to the employee concerned.<br />
2. The employee concerned is given the opportunity to avail of representation.<br />
3. The employee concerned has the right to affair and impartial determination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the employee to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence factors or circumstances.</p>
<p>It is advisable that allegations be set out in writing, that the source of the allegation or complaint be given or that the employee concerned be allowed to confront or question the witnesses</p>
<p>Disciplinary action may include:</p>
<p>1. An oral warning<br />
2. A written warning<br />
3. A final written warning<br />
4. Suspension without pay ( not advisable)<br />
5. Transfer to another task<br />
6. Some other disciplinary short of dismissal</p>
<h2>Dismissal</h2>
<h3>Fair Dismissal</h3>
<p>In circumstances where an employee can demonstrate that they were dismissed from a contract of employment, then the onus is on the employer to demonstrate that this dismissal was justified and therein fair.</p>
<p>In order to achieve an employer must show that the dismissal was premised upon one or more of the grounds set out in the Unfair Dismissals Act 1977. In doing so the employer must also rebut any allegation of dismissal on any improper grounds alleged by the employee.</p>
<p>The grounds upon which dismissal may be premised include: capability, competence, qualifications, conduct, redundancy, illegality or another case premised on unnamed “substantial grounds”.</p>
<h4>1) Capability</h4>
<p>Capability grounds are usually premised on issues like lateness, absenteeism, and persistent absence through illness.</p>
<p>If lateness absenteeism is at issue then the employer will be expected to have documentary evidence to substantiate this claim such as clocking in records, or absenteeism files that are not medically certified. In addition the employer should have evident of the severity of the absences being brought to the attention of the employee.</p>
<p>If illness or injury is at issue, it is often assumed that you cannot be dismissed while on certified sick leave from you work. However, this is not true.</p>
<p>It is difficult to lay down hard and fast rules to apply to these cases as each are different and each will be treated on its own merits. Accordingly these instances are usually divided into short term and long term categories.</p>
<p>Short term illnesses are taken to include medical illnesses which require the individual to be absent for short periods from the work place. Assuming that the employer is not actually questioning the validity of the terms cited they will be expected to have:</p>
<p>1.     Established that a pattern of absences exists and it that it is causing problems</p>
<p>2.     Satisfied themselves that the problem is unlikely to get better in the long run.</p>
<p>3.     Warned the employee the dismissal may occur if things do not improve.</p>
<p>Many of the same considerations exist in a long term absence cases. However, employers will in this instance be expected to secure detailed medical evidence which suggests that an early return is unlikely.</p>
<p>The precise timeframe in which an absence will be considered unreasonable will vary from case to case depending on it effect on the work place.</p>
<p>In circumstances where there is a deviation in the medical evidence to both parties as to the likely date of return, the employer should seek a third opinion in advance of taking a decision to dismiss.</p>
<h4>2) Competence</h4>
<p>Competence is taken to refer to the standards which are expected of an individual employee as regards their job. The employer should take the earliest opportunity to outline these expectations to the employee so that each party is fully aware.</p>
<p>In the circumstances where you fall short of the standards expected, it is understood that this should be communicated to the employee through formal procedures in addition to a specification as to the improvements necessary. The improvements should be achievable and be within a reasonable time timeframe.</p>
<p>Ultimately, a final warning should be given to the employee setting out the likely hood of dismissal should there not be a marked improvement.</p>
<h4>3) Qualifications</h4>
<p>This kind of situation envisages two potential forms: either the employee misled the employer about qualifications during the process of applications or the job was offered contingent on certain qualifications being secured which have subsequently not been secured.</p>
<h4>4) Conduct</h4>
<p>Conduct is taken to cover a very large area of behaviour and might be accurately termed misconduct. In this regard there is a very clear need to differentiate between gross misconduct and ordinary instances of misconduct.</p>
<p>Gross misconduct may give rise to summary dismissal without notice or pay in lieu of notice.</p>
<p>Alternatively a series of instances may collectively lead to dismissal. In the case of instances of minor misconduct warnings as to future behaviour must be issued.</p>
<h4>5) Redundancy</h4>
<p>In this case the employer should establish that the current levels of staff are unsustainable and that accordingly the dismissal of the employee was justified.</p>
<p>This may be countered by the employee in circumstances where evidence suggests that:</p>
<p>There was no economic imperative or justification for the redundancies eg. Company continues to operate profitably</p>
<p>That the space vacated had been refilled</p>
<p>That the process of selection for redundancy was unfair</p>
<p>That the basis for selection was premised on discrimination</p>
<h4>6) Illegality</h4>
<p>This situation is taken to occur in a situation where the employee’s continued employment in their current situation would be a breach of the law. The most obvious example of this may be said to occur where a valid driving license is required to continue work in a haulage business as a truck driver.</p>
<p>In certain circumstances, the court may be prepared to accept an argument that reasonable accommodation of the employee should have been considered prior to dismissal, that is to say, an employee no longer able to carry out a specific task may be used in a different role.</p>
<h4>7) Other Substantial Grounds</h4>
<p>In circumstances whereby the employer cannot rely on any of the grounds as aforementioned, then an onus will be imposed upon them to justify the dismissal on the basis of other “substantial grounds”.</p>
<h3>Unfair Reasons</h3>
<p>The Unfair Dismissals Act lists numerous grounds upon which dismissal premised upon, if proven to be so, will be unfair including:</p>
<p>1. Taking part in a strike action<br />
2. Membership of a trade union or participation in union activities<br />
3. Religious or political opinions<br />
4. Actual or threatened civil or criminal proceedings to be taken against the employer. This is taken to extend to situations whereby the individual is merely to act as a witness<br />
5. Race, colour or sexual orientation<br />
6. Membership of the traveller community<br />
7. Pregnancy<br />
8. Exercising right under the Adoptive Leave Act 1995<br />
9. Exercising right under the Parental Leave Act 1998<br />
10. Exercising right under the National Minimum Wage Act 2000<br />
11. Unfair selection for redundancy<br />
12. Exercising right under the Maternity Protection Act 1994<br />
13. Exercising right under the Carer’s Leave Act 2001<br />
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		<item>
		<title>Terms of Employment</title>
		<link>http://businessandlegal.ie/terms-of-employment</link>
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		<pubDate>Thu, 24 Sep 2009 06:24:50 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[constructive dismissal]]></category>
		<category><![CDATA[terms and conditions of employment]]></category>
		<category><![CDATA[terms of employment]]></category>

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		<description><![CDATA[Terms and conditions of employment in a recession &#8211; are employers entitled to unilaterally vary such terms and conditions? Terms And Conditions of employment An employee’s terms and conditions of employment may be a mix of those terms that are clearly set out in his/her contract, those implied by custom and practice and the employer’s [...]


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<p> <strong>Terms and conditions of employment</strong> in a recession &#8211; are employers entitled to unilaterally vary such terms and conditions?</p>
<h2>Terms And Conditions of employment</h2>
<p>An employee’s terms and conditions of employment may be a mix of those terms that are clearly set out in his/her contract, those implied by custom and practice and the employer’s duty to act reasonably, those which are incorporated through collective agreements and those which derive from statute (such as the right to minimum wage or annual leave) which apply automatically.</p>
<p>Amending terms and conditions of employment-historically<br />
Where an employment contract does not expressly enable the employer to vary the terms of employment, employers may either:</p>
<p>1. Obtain the employee’s express agreement to the change;<br />
2. Terminate the employee’s employment on due notice and offer re-engagement on new terms; or<br />
3. Attempt to impose the change unilaterally.</p>
<p>Unilateral variation of an employee’s terms and conditions of employment to the employee’s detriment may give rise to:</p>
<p>1. A claim of constructive dismissal under the Unfair Dismissal Acts 1977-2007 or at common law;<br />
2. A claim for damages for breach of contract;<br />
3. A claim in respect of an unlawful deduction under the Payment of Wages Act 1991;<br />
4. A “trade dispute” under the Industrial Relations Acts 1946-2004,<br />
5. Industrial relations issues, and<br />
6. Injunctive proceedings to prevent the unilateral variation.</p>
<p>What is contractual, and not merely a work practice, may not be varied unilaterally.</p>
<p>Such variation must be agreed between the parties regardless of whether the term is express or implied.</p>
<p>In practice, whether or not an employee benefit constitutes a term or condition of employment may be somewhat academic if changing it is likely to give rise to industrial relations issues and human resources problems. In Neville v Waters Munster Glass Ltd RP558/2003, the claimant, having refused to accept a reduction in salary and to work a reduced three day week, was consequently made redundant. Although the claimant argued that he had been unfairly dismissed, the tribunal held that a genuine redundancy situation existed.</p>
<p>It is clear from a UK case, GAP Personnel Franchises Ltd v Robinson UKEAT/0342/07, that where employees do not accept a unilateral variation by the employer, especially one that has an immediate impact (e.g. the reduction in pay or benefits), they should make it clear, preferably in writing, that they do not accept the change and are working under protest. Otherwise the employee may eventually be held to have implicitly accepted the change.</p>
<p>Variation of terms and conditions of employment in a recession<br />
With unemployment rising to a rate of 8.3% and FÁS forecasting that this rate will exceed 12% during 2009, resistance to changing terms and conditions is low. There has been no change in the legal requirement to obtain employee consent for such variation, however many employees are accepting paycuts where they are being implemented in a genuine effort to avoid job losses and to try to ensure the employer’s survival.</p>
<p>However, it is significant to note that workers opting to accept a paycut, in order to avoid the threat of job losses, may find themselves being made redundant if the employer is ultimately forced to close down. The statutory redundancy payment is based on the employee’s current wage which will mean a lower statutory severance package than the employee would have received on the previous higher wage.</p>
<p>In Practice<br />
In the course of varying terms and conditions employers should:<br />
1. Maintain clear communication with employees;<br />
2. Provide employees with reasonable notice of any variation to terms and conditions;<br />
3. Be able to explain why the change is necessary and inform the employees of the alternative (i.e. a more formal re-structuring and ultimately possible job losses);<br />
4. Consider whether the new terms can be imposed in stages as opposed to implementing all variations at once. This may help to ease the transition and allow employees to plan for the change; and<br />
5. Consider whether an incentive can be suggested to assist employees in accepting the change. This does not necessarily have to be a financial benefit.<br />
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<li><a href='http://businessandlegal.ie/employment-law-employment-rights-and-duties' rel='bookmark' title='Permanent Link: Employment Law |Employment Rights And Duties'>Employment Law |Employment Rights And Duties</a></li>
<li><a href='http://businessandlegal.ie/termination-of-employment' rel='bookmark' title='Permanent Link: Termination of Employment'>Termination of Employment</a></li>
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		<title>Work Permits-Big Changes in Ireland</title>
		<link>http://businessandlegal.ie/work-permits-big-changes-in-ireland</link>
		<comments>http://businessandlegal.ie/work-permits-big-changes-in-ireland#comments</comments>
		<pubDate>Thu, 24 Sep 2009 06:09:40 +0000</pubDate>
		<dc:creator>terry</dc:creator>
				<category><![CDATA[Employment Law]]></category>
		<category><![CDATA[green cards]]></category>
		<category><![CDATA[work permits]]></category>

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		<description><![CDATA[The Tánaiste has announced the introduction of revised qualifying conditions for new work permits being sought by first-time entrants to the labour market. These changes are intended to come into effect from the 1st June 2009. A key feature of the new arrangements will be the application of a tougher labour market needs test for [...]


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<p> The Tánaiste has announced  the introduction of revised qualifying conditions for new work permits being sought by first-time entrants to the labour market. These changes are intended to come into effect from the 1st June 2009.</p>
<p>A key feature of the new arrangements will be the application of a tougher labour market needs test for all future work permit applications and renewals so as to allow the maximum opportunity for any available job vacancies to be filled from within the Irish labour market and wider EEA.</p>
<h2>Main Features of New Work Permit Rules</h2>
<p>The main features of the new work permit measures are:</p>
<p>Work Permits</p>
<p>* Making more job categories ineligible for new work permits (work riders, domestic workers and HGV drivers now ineligible), and an ongoing assessment of other occupational categories regarding their continued eligibility</p>
<p>* No new permits for low-paid jobs i.e. paying under €30,000 per annum</p>
<p>* Strengthening the labour market needs test by doubling EURES/FAS advertisement of the job vacancy to 8 weeks, and national press advertisement to six days.</p>
<p>* Tougher conditions for the renewal of permits – higher fees and requirement for labour market needs test on renewal</p>
<p>* Spouses and dependants of future principal work permit holders having to apply for permits in their own right subject to the standard eligibility criteria and fees for Work Permits (currently spousal/dependant work permits are open to all job categories with no labour market needs test applied or fee charged)</p>
<p>Green Card List – Salaries paying €30,000-€60,000</p>
<p>The Green Card list is reviewed periodically to ensure that it remains relevant to the needs of the Irish labour market.</p>
<p>Certain categories were previously removed from the €30,000-€60,000 list i.e. Quantity Surveyors, Building Managers, and some categories of Engineers and Architects.</p>
<p>A recent review has shown that skills shortages no longer exist in respect of the occupations listed by industrial sector below. On that basis the following occupations are being removed, with immediate effect, from the Green Card eligible list where the salary payable for the job is in the range €30,000-€59,999 per annum:</p>
<p>- Healthcare: Registered midwives; physiotherapists; psychologists; social workers; medical physicists; and speech and language therapists.</p>
<p>- Financial Services: Economists; statisticians; underwriters; claims assessors and analysts; securities specialists; fund and investment management specialists; common law jurisdiction lawyers; investment fund professionals; fund accountants; fund valuations professionals; fund administrators; custody specialists; transfer agents; and hedge fund specialists.</p>
<p>- Industry/Services: Marketing Managers.</p>
<p>These occupations continue to be eligible for Green Cards where the salary payable to the jobholder is €60,000 or more per annum.<br />
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