Paternity Leave

Paternity Leave is the unpaid leave granted to the male employee on the birth of his child in ireland. The Paternity Leave is for a maximum of ten (10) days off linked to the birth of the father’s child. The leave should be taken within 26 weeks of the birth of the child.

Please note that if the company contributes towards a Maternity Leave payments than on the grounds of gender equality they should also contribute towards Paternity Leave.  

The father can claim a Paternity Benefit from the Department of Social Protection at a rate of €230 per week. This benefit is similar to the Maternity Benefits and the employee needs to have built up 39 weeks of PRSI contributions. The father should give the company four (4) weeks notice in writing before taking the leave. However if there are premature births the notice period can be shortened.

The father needs to fill out the Paternity Leave form four weeks before the requested Paternity Leave and the form needs to be handed in to the company. The Paternity Leave benefit is also available for a father adopting a child and same sex couples adopting a child. During the Paternity Leave the employee will continue to build up his normal entitlements and his build up for holiday entitlements will also continue. Part-time employees are entitled to Paternity Leave on a pro-rata basis. Please note that the employee can be asked to provide the childbirth certificate.

Industrial Relations 2016 - 22.5% Wage Increase

The Labour Court ruled recently on the first Industrial Relations dispute before them after the new Industrial Relations (Amendment) Act, 2015. The dispute was between Freshways Food Company (employer) and SIPTU (LRC21242) and it was about pay and conditions. The company employs 250 workers of whom 170 are general operatives, the company makes sandwiches. SIPTU represented 63 workers at the company. SIPTU had tried through collective bargaining to improve the pay and conditions of its members, but the company didn’t engage with the union as it was engaged in collective bargaining through a Staff Representative Group (SRG). The company saw that the Staff Representative Group was an accepted body within the statutory meaning of that expression and that the practice engaged in by the SRG constituted collective bargaining. The SRG negotiated a pay increase of 2.5% which was implemented in February 2016. However the Labour Court concluded that the SRG was not the collective bargaining partner as a once off occurrence cannot amount to practice. Meaning as they had only negotiated once this was not enough to get recognition of the SRG as a bargaining partner.

The court was furnished with detailed information on the terms and conditions applicable in other named employments in the Prepared Foods Sector. The Court sought agreement and obtained agreement from both parties that it should take this analysis into account without reconvening the hearing. All of this information has been fully considered by the Court in formulating its recommendation. In this case, all the comparator enterprises relied upon the Union are in what is classified as the Prepared Foods Sector. While the employer produces sandwiches others relied upon different types of prepared or convenience food for immediate consumption. Overall the Court was satisfied that the comparators cited are appropriate for the purpose of the exercise in which the court is engaged.

Recommendation of the Labour Court: The workers involved are paid now €9.38 per hour. The Court recommends that they will receive an increase as of 1^st September 2016 of 70 cent per hour, a further increase as of 1^st June 2017 of 70 cent per hour and finally an increase of 72 cent per hour as of 1^st January 2018. This is a total increase of €2.12 to €11.50 over 16 months which is an increase of 22.5%! The Court also recommended a sick pay scheme providing for 10 days sick leave on full pay less social welfare entitlements.

It is important that employers take note of these recommendations of the Labour Court and they are warned that if unions want to get bargaining rights they will go to the Labour Court, where their grievances regarding pay are taken very seriously!

Taking all of this into consideration I have to make a number of observations: -

The first observation is regarding not allowing the Staff Representative Group to negotiate on behalf of the employees as only one bargaining had happened and the law was plural, meaning that more than one bargaining had to have happened to get recognition. You need to consider that the SRG was elected by all employees and the union only represented 63 employees, which was 25% of the total workforce or 37% of the general operators. One also needs to take into consideration that in the last eight years, since 2008, hardly any wage negotiations took place and if they took place it was more about wage reductions than wage increases. The owner had acquired the business in 2013 by way of management buyout. Now if they had negotiated a wage reduction with the SRG then according to the Labour Court all would be well, as they then had negotiated twice and then the SRG would be recognised. I would consider the Labour Court recommendation harsh for quoting the law to rule out the SRG, but missing the meaning of the law.  

Second issue is that the Labour Court went for comparators, which in itself is good practice. However, as the comparators were brought forward only by the union, they knew well which comparators to use and which not. It was naive of the company to agree with this. You could argue that the employees (sandwich makers) were mostly unskilled labour, which some of the comparators weren’t. I would say the wrong comparator was used. A couple of years ago you could use the Catering JLC as the comparator. I would find that this would be a better comparator. However as that comparator was found to be unconstitutional you then might use a similar, reinstated ERO, which is Contract Cleaning, with a similar skill set. The wages for Contract Cleaning were set in October 2015 at €9.75 per hour €1.75 less than what the Labour Court recommended. The recommendation of the Labour Court is the same as the proposed Living Wage which is €11.50 per hour. Is that a coincidence or a statement of intent of the Labour Court? And should the Labour Court act on this before the Government makes a decision on the Living Wage? Furthermore what I understand from the case, as written down by the Labour Court, the company didn’t involve employers’ organisations or IR specialists to guide them through the process of the Labour Court with the result they didn’t present their case as well as could be possible

Thirdly the use of the Labour Court in bringing in individual companies to negotiate pay and conditions is basically unfair. If you are unlucky to be brought forward to the Labour Court to negotiate pay and conditions you could, as in this case, be unlucky, resulting in a considerable increase in the wage bill, which will affect your competitiveness. Or you could be lucky and be missed by the unions and not brought before the Labour Court and be very competitive! The only way to resolve this is by sectorial agreements which set pay and conditions for an industrial sector. All employers and Unions have to come to an acceptable agreement and if they can’t then there might be a role for the Labour Court. But at least the outcome is fair and the same for everybody in the industry, such an approach is successfully used in other EU countries.

The new Industrial Relations (Amendment) Act, 2015 is going to be an interesting exercise in Industrial Relations for the coming years and especially with the Labour Court interpreting it in an employee ‘friendly’ manner.

In all one can only say: Employers be aware!        

How to handle a dismissal

“Could you come in now direct to see us?” That is a question which I am frequently asked by managers, who are not sure what to do in the case of a dismissal and are wise enough to ask for assistance. The legislation regarding a dismissal can be tricky and difficult enough for any individual and it is more difficult when you are agitated when something has gone wrong and you are tempted to make a decision on the spur of the moment. In those cases it is always sound to get an outsider in who can look at the facts coldly and make a fair assessment about what needs to be done.

In my experience managers do not enjoy reprimanding or dismissing any of their employees lightly. The opposite is true. In most cases managers will avoid giving feedback regarding employees’ performance at all cost. They will give the employee chance after chance in the hope the problem will improve and will go away. In most cases they do improve, the employee somehow gets the message and cops on, get his act together. In other cases this doesn’t happen and then at a certain point after giving him the benefit of the doubt several times, the manager has enough and wants to end the employment there and then.

Dismissing someone in Ireland isn’t the most difficult thing to do. There are other countries where such procedures are much more complicated. However, there are certain strict rules one has to follow and I will give you now some general guidelines how to act (however, by no means complete as one could write several books on this subject). First of all employees must be issued with a copy of the company’s disciplinary procedure within 28 days of commencement of employment, failing to so could jeopardise any dismissal case.

Employees can be fairly dismissed for the following reasons: Conduct, Capability and Competence and Redundancy. In cases where the conduct, capability and competence of an employee aren’t up to the required standards the first thing a manager or supervisor needs to do is to give a verbal warning. While giving a warning you must inform the employee regarding the departure of required standards, what action of improvement is required, when will the matter be reviewed again, what time limit is on the warning and what action will be taken if the improvement is not made. As you probably have to prove as a company that the dismissal was fair you need to prove that you gave the warning by putting it in writing as well and preferably you give the warning in the presence of a fellow manager. If the agreed improvements do not take place then you should give a written warning. Again you must inform the employee regarding the departure of required standards, what action of improvement is required, when will the matter be reviewed again, what time limit is on the warning and what action will be taken if the improvement is not made. Again give the written warning in the presence of another manager, as you might have to refute any allegations of unfair behaviour made against you at a later stage.

If the necessary improvements do not materialise or other misdemeanours occur during the time limit of the warning, then the Final Written Warning comes into play which is given again in the presence of a fellow manager. You need to explain again what is required from the employee and how long the warning stands.

If the necessary improvements do not come about or other wrongdoings happen during the time limit then a disciplinary meeting, as in previous warnings, needs to be conducted in which natural justice has to take place, this means that: -

• The employee must be presented with the case against him / her;
• The employee must be allowed to be represented; 
• The employee must be permitted and allowed to state their case
• The employer must hear and be seen to hear the case being made
• The employer must only form judgement after having considered all the facts disclosed.

In coming to a final decision the manager must reflect that the sanction must be appropriate to the charge, if there is a dismissal this must be not be seen as excessive, the manager must have approached the hearings fairly and objectively.

Its sounds like an impossibility that any employee will let it come to three warnings and still hasn’t got the message, however, it has happened and will happen again tomorrow, so be prepared! As the employee in a dismissal case is probably going through one of their worst moments in life, be always polite and respectful to the employee. This is helpful for both parties.

Positive Inspiration

I read recently an article which questioned the reason to be positive, to have hope and to be optimistic. I think there are many reasons why being positive works.  

As we are living in challenging times for employees and companies and very often people are stressed out and look towards HR for advice and inspiration. This can be difficult however research has shown that there are answers. Fred Luthans (2009) has defined Psychological Capital which gives a positive approach to developing staff members, managers and human resources in today’s workplace.

Psychological capital includes Hope, Resilience, Optimism and Self-Efficacy all attributes which are extremely important in the current economic climate. We can all use a little hope, resilience, optimism and self efficiency to keep going in these difficult times.

Psychological Capital has been defined as an individual’s positive psychological state of development and is characterized by (1) having confidence (self- efficacy) to take on and put in the necessary effort to succeed at challenging tasks; (2) making a positive attribution (optimism) about succeeding now and in the future; (3) persevering toward goals and, when necessary, redirecting paths to goals (hope) in order to succeed; and (4) when beset by problems and adversity, sustaining and bouncing back and even beyond (resilience) to attain success. 

Positive organisational behaviour is the study and application of positively orientated human resources strengths and psychological capacities that can be measured, developed, and effectively managed for performance improvements.

Managers who wish to enhance the performance of their direct employees will derive some benefit from exhibiting the attributes of hope, resilience, optimism and self-efficacy as managers serve as role models for their employees. If managers persist towards goal accomplishment and do not let setbacks deter them, employees will be more likely to follow suit. In addition when adversity strikes or uncertainty surrounds managers, how they cope will be observed and perhaps mimicked by employees. In short managers are always on stage and followers are watching and taking cues about how to handle situations, what is valued, expected and rewarded. Managers who become more aware of how their psychological capital and level of positivity in general influences their employees and subsequent behaviour will be more likely to see positive performance outcomes.

   

Psychological Capital can be developed through short training interventions, which last one to three hours. These include activities designed to enhance the components of efficacy, optimism, hope and resilience. For example in the hope component of a training module participants begin by delineating key goals they will use throughout the session. The facilitator then explains the need for a concrete end point to measure success, a framework that allows participants to work towards goal accomplishment as opposed to away from desired goals by using a ‘stepping’ method of identifying sub-goals as a way to reap the benefits of even modest achievements. The participants are instructed to generate multiple proactive pathways to the goal and reflect on and discuss the realistic options identified. On completion of this training intervention participants have taken ownership of a personally valuable and challenging goal and are prepared for obstacles and are ready to implement multiple contingency plans to attain their goals.

Psychological Capital training interventions will help build resilience by having participants identify recent personal and organisational setbacks within their work domain and employees have learned new tools to deal with setbacks and create a plan to handle these.   

Setting a positive agenda for survival is important in these challenging times. The lessons we can learn from Psychological Capital is that management can create and build a positive environment in their organisation. It is essential that HR takes the lead in this.  Creating Hope, Resilience, Optimism and Self-Efficacy in any organisation is of benefit for all involved. We saw that management is a role model for all employees and that they are closely watched by employees. If management is a role model than human resources are the real leaders in this and it is essential that they show Hope, Resilience, Optimism and Self-Efficacy on a daily basis. Pessimistic managers are the death knell for any organisation as they give no direction and suck up energy.

More than ever this is a time for positive managers who can create a positive environment and challenge the rest of the organisation to improve, be positive and creative.

Company Investigation

There are situations in companies when the behaviour of employees needs to be investigated. This could be for a number of reasons: disciplinary, bullying and harassment or grievance investigation. Whatever the reason for such an investigation it needs to be done with the utmost care and consideration making sure that the constitutional rights of employees are upheld and that there is no bias towards any employee regarding the outcome of the investigation.

To ensure all this it is essential to get an experienced investigator to handle the investigation and sometimes it is wise to get an outside investigator to conduct the investigation. An outsider is without bias to what has happened in the company and can come to a neutral assessment of what exactly did occur. There is also the fact that the investigator can’t be further involved in the case. The investigator writes down his findings and reports to the company who then have to decide based on the findings, what if anything has to happen. It would be wrong if the investigator would be involved in any further actions and is involved in the decision if the employee should be disciplined. That would not go down well if the case would be later heard by an Adjudicator or the Labour Court. You can’t be judge and jury at the same time. For a lot of Irish companies this would cause a problem as they don’t have enough experienced people to conduct an investigation and a disciplinary meeting and therefore need for an outsider not involved in the case becomes paramount.

The rights of employees need to be guaranteed during an investigation and the follow up. This means that at the start employees need to be clearly informed what the investigation is about and if applicable what they are accused of. The letter of invitation needs to clearly state the reason for the investigation and the rights of the employee on representation. If applicable the terms of investigation need to be set out and communicated to all involved which clearly specify how the investigation is going to be conducted. The Disciplinary & Grievance Procedure and the Bullying and Harassment procedure will explain how an investigation should be conducted and any investigator should familiarise himself with procedures and follow the procedures correctly. It is wise to check if the company procedures adhere to the Code of Practices for Grievance & Disciplinary procedures and Bullying and Harassment. If the don’t fully comply with them it is wise to follow the Codes of Practice guidelines.       

The best way to conduct an investigation is to hold separate meetings with all involved and take statements of the people involved. The people involved have the right to be represented at the investigatory meeting in most cases by a fellow employee or union official. I would always give people the opportunity to read their statements and make any changes which they desire and I would make a point of it that once they are satisfied with their statement they need to sign their statement. The signed statement then forms the basis of the investigation. You need to check if there is any other evidence such as records and CCTV footage. If you intend to use CCTV records then you need to ensure that you will follow any Data Protection legislation which would apply. For a start the employees need to be informed in advance that they are being recorded and that the records can be used for investigation and or disciplinary purposes, this needs to be explained through signs in the buildings and in the Employee Handbook, which each employee involved should have received.

Once you have all the signed statements and other records and documents which relate to the investigation then you can start writing the investigation report and come to a conclusion regarding the investigation. At first the people involved should get a draft report on which they can give their comments and suggestion. You have to take the comments and suggestions into consideration when you are writing the final report. The final investigation report is then given to the people involved.

It is here that the role of the investigator ends and he might be asked to clarify his findings, if there are further actions under the company procedures then another manager will take charge of this aspect. Basically the investigation and the role of the investigator have finished. The final report and the signed statements are handed over to the company for safe keeping and for future reference.