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Unfair Dismissals: An Employer’s Guide

As an employer, it’s essential to stay informed on employment law. You should know both how to protect yourself against unfair dismissal claims, and what to do if you are faced with one.

Under the Unfair Dismissals Acts 1977-2015, if an employee feels that they have been unfairly dismissed, with or without notice, they may seek redress by initiating a complaint to the Workplace Relations Commission.

As the employer, it will be your responsibility to provide proof that the dismissal was procedurally fair and occurred for fair reasons, namely one or more of the following:

  • The employee’s ability, competence, and/or qualifications for their role
  • The employee’s conduct
  • Redundancy (however, if an employee was unfairly selected for redundancy they may raise an unfair dismissal claim)
  • Gross misconduct, for example assault or stealing
  • If continuing the employee’s contract would infringe on a statutory requirement
  • Or ‘other substantial grounds for dismissal’

(Source)

There are several reasons which would be considered automatically unfair grounds for dismissal, including race, age, or sexual orientation. Read part 1 of this blog post for a full list of these reasons.

Following Fair Procedures

Whether the grounds for dismissal are considered fair or not, you must also have followed the principles of natural justice and fair procedures in dismissing the employee. For example, the employee must have been provided with details of the complaints against them, and they must be allowed to respond to same. (Source) Read the WRC’s Code of Practice on Grievance and Disciplinary Procedures for a full rundown of your requirements in relation to natural justice and fair procedures.

What Would be Required if The Claim is Approved?

The most common form of redress in the case of an unfair dismissal is monetary compensation. Usually, the maximum compensation the employee can receive is up to two years’ losses of earnings. If the employee was dismissed due to a protected disclosure, they can receive up to five years’ salary. (Source)

The employee may also have their previous role reinstated, either with or without financial compensation for loss of earnings during the period between the dismissal and the hearing. However, these two outcomes are less frequently awarded. (Source)

Have You Been Faced With an Unfair Dismissal Claim?

Our team has the expertise necessary to assist you through every step of the process.

Contact us on 021 496 3400 freephone or email us at maharvey@martinharvey.ie and we would be happy to help.

Unfairly Dismissed? What You Need to Know

If you feel that you’ve been unfairly dismissed, you may be wondering what your rights are, whether you are eligible to submit a complaint, and who to contact.

To help shed some light on a complicated situation, we’ve compiled an overview of what you need to know and do if you think you have been unfairly dismissed.

What are the Criteria for Unfair Dismissal?

The Unfair Dismissals Acts 1977-2015  is the key legislation in Ireland regarding unfair dismissals. According to the acts, your dismissal would be automatically considered unfair if you were dismissed for any of the following reasons:

  • Trade union membership,
  • Religious or political views,
  • Race, sexual orientation, age, or membership of the Travelling community,
  • Pregnancy, giving birth, or breastfeeding,
  • Taking maternity leave, paternity leave, parental leave, parent’s leave, adoptive leave, force majeure leave, or carer’s leave,
  • Unfair selection for redundancy,
  • Your disclosure of ‘wrongdoing at work’ under the Protected Disclosures Act 2014,

(Source)

  • Acting as a party or witness for legal proceedings against your employer.

(Source)

A dismissal may also be considered unfair if an employee has been dismissed without substantial reason or if natural justice and fair procedures have not been applied and followed regarding the dismissal. 

What are My Rights if I’ve Been Unfairly Dismissed?

The unfair dismissals legislation will not prevent your dismissal. Rather, it gives you the right to make a complaint once it has happened. (Source)

Once you’ve issued a complaint, the burden of proof lies with your employer, and they must prove that your dismissal was fair. 

What Should I Do if I Think I’ve Been Dismissed Unfairly? 

Contact a solicitor, who can provide you with legal advice and represent you at case hearings.

To raise your complaint, a Workplace Relations Complaint Form needs to be submitted to the Workplace Relations Commission as a first step.

How do I Know if I’m Eligible to Submit a Complaint?

Be aware that there are certain eligibility criteria in order to proceed with an unfair dismissal complaint against your employer:

  • You must lodge the complaint with the Workplace Relations Commission within 6 months of the date of termination of employment. 

There are also several reasons why the unfair dismissals act may not apply to you, including being a member of the Defence Forces or the Gardaì.

Do You Think You Have Been Unfairly Dismissed?

The subject of unfair dismissals is complex. You want to be guaranteed that your rights are being upheld and that you receive adequate redress. 

At Martin A. Harvey & Co. Solicitors, our experienced team can provide you with advice and guide you through the entire process.

Contact us on 021496 3400 freephone or email us at maharvey@martinharvey.ie and we would be happy to help.

Protect Your Legacy: What You Need to Know About Planning A Will

It’s a subject that many people would rather avoid. However, preparing and executing your will is an important consideration so that you can ensure your legacy is dealt with as you intend. While it may seem morbid to think about, having your affairs in order will ultimately save your next of kin extra time and stress.

How Do I Put a Will in Place?

Your will can be drafted by a solicitor, or you can write it yourself. The benefit of getting a solicitor’s assistance is that you will be assured that your will is legally valid. Your solicitor can also act as the executor of your will, if you wish.

The criteria for a valid will are:

  • It is in writing;
  • The person making the will (known as the testator) is over 18;
  • The testator is of sound mind, i.e. they must have the capacity to decide what to do regarding their will, and they must be able to understand what they are doing;
  • The will is signed or marked by the testator affirming that they have done so with two witnesses present;
  • This signature or mark is placed at the end of the will;
  • The two witnesses also sign the will, and neither of them receive anything in the will.

There is no prescribed format that you must adhere to when making your will, but it must include several items of information, including:

  • Your name and address;
  • Your statement confirming that you renounce any previous wills or codicils (changes that you may have made to your will);
  • Details of one or more executors, who will be responsible for ensuring that the stipulations in your will are implemented after your death.

You can also include a residuary clause, which details what should happen to any of your assets that are not accounted for in your will.

Can I Change My Will After I’ve Made It?

Once your will has been made, you may want to make amendments due to, for example, changes to your assets or relationships. To do this, you can add what’s called a codicil to your will. A codicil is a separate document that contains information of the change you would like to make. However, if you want to make a lot of changes it may be easier to revoke your will and make a new one.

What if I Don’t Make a Will?

Having a will in place is the only way to ensure that your affairs are delegated as you wish after you die. If you don’t have a will, your estate will be dealt with according to the laws of intestacy. The law of intestacy provides that your estate will be distributed based on your relationship with the beneficiaries.

For such a delicate and complex issue, seeking professional advice is highly recommended.

We have the expertise and experience to guide you through wills and probate issues, whether you are an individual seeking peace of mind in regard to your personal affairs and the distribution of your assets following death or an executor tasked with putting the provisions of a deceased person’s will into operation.

Our team at Martin A. Harvey & Co., Solicitors will assist you throughout the process from initial consultation, extraction of grant of probate and finally distribution of the estate.To arrange for a consultation, please contact our team here.

Workplace Accident Claims: Know Your Rights

At Martin Harvey & Co. Solicitors, we are experts in personal injury claims, so we know that whether you are working on site or from home, work-related accidents are a significant concern.

In 2020, 7,417 non-fatal incidents were reported to the Health and Safety Authority, 96.3% of which were related to workers.

Of these reported incidents, the most common triggers were:

  • Internal injury due to manual handling
  • Slipping or falling
  • Loss of control of object, machine, vehicle, etc.
  • Aggression, shock, or violence
  • Body movement leading to an external injury, such as a cut or bruise

Consistent with these findings, is the fact that the back is the most commonly injured area for workers, making up 20.4% of injuries. (Source)

What to do if you experience a work-related injury

If you experience an accident at work or on your way to work, you should report it to your employer. If you are absent for three consecutive days (excluding the day on which the accident occurred), your employer should report this to the Health & Safety Authority.  For a full rundown on when and how employers should report these incidents, see this guide from the Health & Safety Authority.

Your employer has a duty to ensure your health and safety, including the provision of a risk-free workplace, adequate training, and proper facilities. (Source) Some workplace accidents occur due to negligence on the employer’s part if they do not adhere to health and safety legislation and fulfil their duty of care. 

If you do not have grounds to raise a workplace accident claim against your employer, there are several potential means of obtaining financial assistance in the event of a workplace injury. Your employment contract will tell you whether you can avail of paid sick leave. Note that your employer has no legal obligation to provide this to you. Alternatively, you may be able to avail of the Occupational Injuries Scheme, or, depending on the extent of your injury, illness benefit or disability allowance. (Source)

If you can prove negligence or a lack of fulfilment of legal obligations on the part of your employer, you can raise a workplace accident claim against them. To support your claim, it is important to document the incident. Determine if there were any witnesses or CCTV in operation at the scene of the accident. Seeking medical attention once the injury has occurred will also provide you with medical records to support your claim. In some cases, the employer may try to prove that the injured party holds some responsibility for the accident, which is called contributory negligence. For this reason, it is strongly recommended to seek advice from a solicitor, who can guide you through the claims process and ensure that you are awarded the rightful amount of compensation.

At Martin A. Harvey & Co. Solicitors, we are specialists in the area of workplace accidents. We can provide professional advice with respect to your injuries and your particular rights regarding out of pocket expenses and the loss of your wages. Contact our team using our contact form on 021 496 3400 freephone or email us at maharvey@martinharvey.ie.

Are You Eligible for the Help-to-Buy Scheme?

The Government’s announcement regarding the extension of the Help-to-Buy Scheme means that prospective homeowners can continue to apply for financial assistance in purchasing a new home until the end of 2022.

If you’re thinking of applying, there are a number of eligibility requirements that you will need to bear in mind. To help you understand this process, we’ve put together a short guide which will give you a better understanding of the scheme.

What is the Help-to-Buy Scheme?

The purpose of the scheme is to assist first-time buyers to purchase new residential builds, or to self-build a residential property. The incentive has assisted many prospective homeowners to get started on the property ladder and has encouraged increased activity in the construction industry. 26,744 claims have been approved on the scheme so far. (Source)

During the unveiling of Budget 2022 on 12th October, the government announced that present scheme rates will remain until the end of 2022.

What are the requirements?

To be eligible for the scheme, you must be a first-time buyer of a newly built apartment or house, or you must be undertaking the self-build of a residential property. The purchase or build must take place between 19th July 2016 and 31st December 2022. As of 1st January 2017, the help-to-buy incentive has applied to properties worth €500,000 or less (Source). Investment properties do not qualify, nor do cash-bought properties. However, properties that are inherited or gifted are eligible. (Source)

Under the scheme, if you are purchasing a new build, you must take out a mortgage of at least 70% of the buying price. If it is a self-build, the mortgage must be 70% of the mortgage provider’s valuation. The purchaser must also reside in the property for a minimum of 5 years after it is bought or built. Revenue has provided a list of developers and contractors that are approved for the scheme.

In July 2020, the maximum refund amount was increased, and this will now be extended until 31st December 2022. To qualify for this enhanced relief, you must have either signed a contract for the purchase of a new house or have drawn down a mortgage for a self-build between 23rd July 2020 and 31st December 2022. (Source)

If you qualify, you can claim a rebate on your income tax and Deposit Interest Retention Tax (DIRT) for the previous four tax years. Successful applicants will receive 10% of the property value, or €30,000, whichever is the lower amount. (Source) (Source)

How do I apply?

You can apply online through myAccount or Revenue Online Service, where you will have to fill out a Form 12 Tax Return. As part of your application, you will be required to provide the contract for your new home, which you can acquire from your solicitor. You will also need to provide details of the property, including its purchase price and completion date. Details of your mortgage lender, your mortgage, and your property developer should also be submitted with your application. If your claim is approved, the refund will be provided to the developer, and then deducted from the price of the property. (Source)

If you would like a personal consultation regarding your application for the Help-to-Buy Scheme, our experienced team would be happy to help. Contact us by calling 021 427 1006, freephone 1800 396396, or email maharvey@martinharvey.ie.

CAMHS Misdiagnosis

In April 2021, the HSE stated that it was reviewing the files of over 1,500 children and adolescents who had received care between 2016 and 2020 at Child and Adolescent Mental Health Services (CAMHS) South Kerry. This was a result of concerns that had been raised about the care given in a number of cases.

The parents have recently been informed that their child’s mental health issue was misdiagnosed and consequently, they may have been prescribed incorrect medication over an extended period.

Martin A. Harvey & Co Solicitors understands that there may be over 1,500 children from all over South Kerry who attend CAMHS and have been impacted by this prolonged misdiagnosis. Such failures are likely to have a detrimental effect on those who have been misdiagnosed and administered incorrect medication over a long period of time.

We have instructions on behalf of a number of families who have been affected. Please contact William Harvey of our offices for an initial consultation and advice on 021 4963400 or William.harvey@martinharvey.ie.

Making a Personal Injury* Claim: Step by Step

Sustaining a personal injury* can be a traumatic experience. 

Whether you are subject to a road traffic accident*, a slip or fall in a public place*, or casualty in the workplace*, you may experience many forms of trauma including physical and psychological pain.**

If you have been involved in an accident wherein you received an injury due to the negligence of another person or entity, you may want to seek compensation by making a personal injury* claim. Read on to find out what steps you should take.

For an introduction to personal injury* claims, read our Complete Guide to Personal Injury* Claims.

Speak With a Solicitor

Making a claim can be a lengthy and complex process, with numerous strict stipulations. For this reason, your first step in making a claim should be to consult a solicitor, who will look out for your best interests and protect your rights. They will also provide help and guidance in submitting your application, procuring your medical report, and providing advice on whether you should accept or reject the assessment made by the Personal Injuries Assessment Board (PIAB). If you take your claim to court, they can arrange for the necessary court proceedings to be drafted and act as your legal representation.

Contact the Responsible Party

You must contact the responsible party, a.k.a. the respondent, in writing within one month of the accident, advising them of the accident and resulting injury. If you do not do this within one month, your PIAB application may not be affected, but it may infringe on your case if you end up taking it to court. The respondent must consent to the PIAB assessment within 90 days of your notice. If the respondent does not want the claim to be reviewed by the PIAB, you may take the claim to court. (Source)

Establish Your Medical History

As part of your application, the PIAB will need to review a medical report. (Source) This report can be provided by the medical practitioner who treated the injury in question. If you are unable to submit a medical report along with your claim application, you can ask your doctor for a note with details of your injury. You can also opt to submit a copy of your hospital admission records. If none of these options are possible, you can still submit your application on its own and send the medical report later. However, please note that you must submit all documentation (application, medical report, and fee) within two years of sustaining the injury. (Source) Before assessing your claim, the PIAB may carry out an independent medical examination. (Source)

Fill Out a Personal Injury* Claim Application

As mentioned, personal injury* claims should be sent to the Personal Injuries Assessment Board (PIAB), apart from cases of medical negligence.** The PIAB is an independent statutory body that assesses “personal injury claims for compensation following road traffic, workplace or public liability accidents.” (Source)

To submit your claim, you can go to piab.ie to fill out the application form. You may submit the form online or by post.

Submit Your Application

When submitting the form, you must include the processing fee. As mentioned, if you have medical documentation at that point, include this with your application. If you have made any financial losses due to the accident, you must include receipts of this with your application. You can also include any other documentation that you deem relevant. (Source)

Remember that you must make the claim within two years of the date on which you sustained the injury, per the Civil Liabilities and Courts Act 2004. (Source)

Receive a Decision on Your Claim

Once the respondent permits the claim to be assessed by the PIAB, it will take ‘just over 7 months’ on average for a decision to be made. If your claim is taken to court, it may take up to 36 months. For claims assessed after 24 April 2021, the PIAB refers to the Personal Injuries Guidelines as a guideline for awarding personal injury* claims. (Source)

It is usually the respondent’s insurers that are responsible for paying compensation if the claim is awarded. (Source) If either you or the respondent does not accept the award provided by the PIAB, the case may be taken to court. (Source)

If you would like assistance regarding a personal injury* claim, please contact the team at Martin A Harvey & Co. Solicitors and we would be happy to assist you.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

**Please note that the PIAB may allow you to take your claim straight to the courts without an assessment ‘if your injury consists wholly or in part of psychological damage which would be difficult to assess by means of PIAB’s assessment procedures’. (Source)

What to do after an accident in a public place

In recent months we have all been keen to make better use of the great outdoors and enjoy outdoor dining. With many new activities, pedestrian areas and outdoor dining spots opening up, this has meant that the rate of injuries and accidents occurring in public places is rising. 

At Martin A Harvey, as one of the top personal injury firms in Ireland, we have been successful in securing compensation for clients who have had an accident or suffered an injury in a public place.

If you have been injured or had an accident in a public place, you should: 

  • Request that the owner of the property or an employee report the accident and document the circumstances, and provide you with a copy of this report;
  • Take photos where possible / if appropriate. Make sure you take as many as you can with varying angles to ensure a full picture can be obtained on review;
  • If you have been injured, make sure you seek medical help;
  • Speak to a solicitor.

If you feel that another party may be at fault following your accident, you should consider: 

  1. Did your accident happen in a public place?

This is the most important question you should establish – understanding the environment in which you were injured is vital in establishing who will be held responsible for your injury. By definition, a public place is: 

Any area that is intended for use by members of the public such as a road, outdoor area, vehicle that is carrying persons, or any premises that you have been granted access to by express or implied permission. 

Examples of these usually include pathways, roads and parks that are poorly maintained or have uneven surfaces, are littered with potholes or have obstructions on access routes.

  1. Was your accident avoidable?

For a claim to success, you or your legal team must prove that the accident was avoidable, ie: that the organisation in charge of the facility failed to keep the area free of danger to those using it. To prove negligence on behalf of the property administrator, you will need to demonstrate: 

  1. That the Local Authority or organisation had an obligation to the public to a) not to do anything or b) failed to anything that would cause you to be injured; 
  2. The Local Authority or organisation consciously made a decision that resulted in these points;
  3. It could be reasonably expected that an accident would occur as a result of this;
  4. That the Local Authority or organisation did not operate the standard of conduct to be expected, thus resulting in the injury.

No matter the circumstance of your accident, at Martin A Harvey our expert team are ready and available to provide legal advice that will ensure the best result for you. As a small team, you will be greeted with a friendly and personal service.

Call today (021) 427 1006, freephone 1800 396 396 or email maharvey@martinharvey.ie. We look forward to helping you.

Back to Work & Workplace Accidents

BACK TO WORK – ACCIDENTS IN THE WORKPLACE ON RETURN FROM POST COVID-19 LOCKDOWN

Under the Health & Safety at Work regulations in Ireland there are very clear obligations for employers to ensure the safety of staff and visitors on their premises.

If you are an employer, you have legal obligations to safeguard all people in your workplace. There are health and safety rules covering a wide range of issues such as the use of computers in the workplace, regulations on working with hazardous materials, construction regulations, manual handling regulations and many others.

Nervous about returning to work?

There is a need for increased vigilance when it comes to implementing health and safety procedures for employees soon returning to work. Hazard audits may not have been carried out during lockdown and there has certainly been reduced consultation between employers and employees in regards to real and perceived hazards.

The implementation of safety procedures to minimise new hazards has been sporadic, inconsistent or non-existent as a result of lockdown. Furthermore, resuming normal workplace activities after such a long period of enforced inactivity may result in a significantly altered workplace and new dangers and hazards. This comes with an increased risk around health and safety policy, procedures, and hazard audits.

It is at times like this, when we are most likely to forget about safety audits, that we must remember to proceed with them the most.

3 Easy Steps for Employers

Here are some simple steps that employers should consider in order to ensure that they are putting the safety of staff and visitors first.

1) Consideration should be given to possible changes in the workplace with an emphasis on new hazards. Carry out a full safety audit and hazard audit, ergonomic review and brief all employees before recommencing work.

2) After such prolonged absence, all staff should be refreshed on existing health and safety procedures, and updated on new health and safety procedures. These procedures will come about following the safety and hazard audit

3) New procedures and health & safety measures identified in the hazard audit of the new or enhanced work environment should be discussed fully with employees, and should be implemented comprehensively .

Had a workplace accident ?

Doctor’s appointments to attain medical reports for the Injuries Board process can be difficult to organise at the moment, but we can help you to arrange a medical review. The Injuries Board will accept applications filed by applicants or their injury solicitor without a medical report, which will help to speed up your case.

If you’ve experienced an injury in the workplace, please feel free to contact us here at Martin A.Harvey & Co.Solicitors on 021-4963400 freephone or email us at maharvey@martinharvey.ie.

Apology by Department Of Children

Apology issued by Department Of Children after negligent data breach of those who attended mother and baby redress meetings

An apology has been issued by the Department Of Children after email addresses of 18 people were unintentionally shared with other participants attending the Online Consultation regarding redress for Mother and Baby Homes.

Reports detail that the incident occured due to an unplanned error concerning diary invites which were sent through the video meeting platform Zoom, for two Online Consultation Meetings on Monday the 22nd of March.

18 individuals were affected by the breach concerning the online invites sent out on the 19th of March to those due to attend the Consultations.

OAK, who were hired to oversee the public consultation process, notified the department on Monday of the breach and the department’s Data Protection Officer was informed.

Oak has discontinued the use of this invite function with all invitations for future consultations to be distributed on an individual basis.

if you would like to receive more information contact us at Martin A.Harvey & Co.Solicitors on 021-4963400 freephone or email us at maharvey@martinharvey.ie

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