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Thursday 18 September 2014

‘I was made redundant, and then I saw my job being advertised’

More employees are standing up for their rights in the face of increasing job cuts, says Siobhan Cronin

Published 02/02/2009 | 00:00

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Aengus McCabe: "I was delighted when I won my case."

Like cobblers, mechanics and furniture upholsterers, another profession could be rubbing their hands with glee as the recession bites -- employment lawyers.

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New figures reveal that over the last five years the number of people unfairly dismissed from their jobs has jumped a huge 500pc -- up from just 545 cases in 2002 to almost 2,500 in 2007.

And with some unscrupulous employers jumping on the 'hard times' bandwagon, this rise is certainly set to continue.

But those firms thinking of taking advantage should take note -- employees are becoming increasingly aware of their rights, and their rights are increasing, too.

"Employment is one of the most regulated areas because there is just so much legislation and now there is a huge onus on employers to be compliant," says Newbridge-based employment lawyer Helen Coughlan.

"Currently, the law is very protective of the employee," she says, pointing out that even if a company has a valid reason for dismissing a worker -- such as harassment of a colleague, or downloading porn -- if it doesn't follow the strict rules governing dismissals, the decision could be successfully challenged.

Barrister John Eardly agrees. "Since the late '90s there has been better protection for workers, and equality legislation is a perfect example of that," he says. "And the problem for employers is that the law is being interpreted widely so they are under pressure to keep up with that."

He adds that in the last 18 months there has been an awareness among workers that, while there may be genuine redundancies coming, there may also be some unlawful ones, as firms try to use the 'R' word as an excuse for staff clear-outs.

'Out-scourcing' is really starting to make an impression in Ireland, but firms cannot just downsize in order to increase profits, says the lawyer, and that's the law now.

"A transfer of work to an out-sourcing firm or a sub-contractor cannot be a reason to sack anybody or reduce their conditions," he points out. "Out-sourcing is not supposed to be a cost-cutting exercise."

"Remember it's the job, and not the person, who is being made redundant, so a company cannot cherry-pick who it lets go," Helen Coughlan points out. "They can use a 'last in, first out' method, or look at attendance or performance, but they have to have valid reasons."

There are two things to look out for in a case of redundancy, says Mr Eardly, who has just published a book on employee rights. Firstly, a redundant worker should make sure the method used was legal, that procedures were followed and there was no mishandling of it.

Secondly, they should be confident that it wasn't a forced redundancy -- for example, did the employee feel they had no choice because of a change in conditions, such as shift work, or unsocial hours?

In recent times, workers have become more confident about challenging decisions made, and also about asking that they be consulted about the decisions in the first place. And they are entitled to be consulted.

This is all the more significant when you realise that about 70pc of all Irish workers are not represented by a trade union. And that, legally, a company does not have any obligation to enter into talks with trade unions anyway.

The arrival of major US corporations during the '80s and '90s, with their good-conditions-but-no-union mantras may be prompting some concerns among staff now as the conditions begin to disappear in line with profits.

But at least the massive immigration of recent years prompted an overhaul of our labour laws and this, combined with the influence of the EU, has meant much better terms and conditions for all workers.

"The Polish were particularly good at demanding their entitlements and suing employers if they were not forthcoming," Mr Eardly says. "That is because they came from an Eastern European culture of very good social protection."

Helen Coughlan cites the case of the foreign workers who successfully sued an Irish firm because their contracts were not in their own language, even though the company later provided a translator.

Non-European non-nationals were particularly vulnerable, given the archaic visa system which operated until 2006, which saw them dependant on their sponsor employer for work.

This medieval type of work permit has since been replaced by the much more humane system which allows them to apply for their own work permits and therefore gives them the freedom to move between companies.

But Mr Eardly says the most staggering aspect of working in employment law is the sheer naivete of the actual employers, and not the employees. This naivete has been evidenced by some of the more bizarre outcomes of recent cases.

There was the employer whose slow response to bathroom graffiti ('the black boy must go home') angered a Nigerian into bringing the case to the Equality Tribunal.

Or a woman who claimed harassment in the form of sexually overt text messages from her manager.

When the case went to a hearing, her former employers introduced the woman's own sexual history. The tribunal awarded the complainant €10,000 for the effects of discrimination, plus €15,000 for the effects of the victimisation.

There was even a case of a manager calling a Dutch employee a 'tulip' and saying to him: "I hope that's not wacky tobacco you're smoking."

Some of the case law has created quite interesting results. An employee successfully made the case that his alcoholism was a 'disability'. His firm was liable for discrimination because they could not prove that their failure to promote him was unrelated to alcoholism.

Not only that, but the case opened the door for employers to be expected to 'reasonably' accommodate employees with symptoms of drink and addiction problems by offering them special assistance or rehab treatment, once a doctor certifies that this may help the worker remain in employment.

Anorexia has also been deemed a disability and obesity has been termed an 'imputed disability'.

One of the aspects of labour law that many employees don't realise is that their employer is presumed to have acted unfairly unless they can show otherwise.

"It is more often a case of omission rather than commission in the case of the employer," says Mr Eardly.

"The Labour Court realises nobody is going to admit to being, for example, racist, so the burden is on the employer to prove what was on their mind when they made a particular decision."

And finance should no longer be a bar to bringing a case to court. Complainants may like to hire a solicitor for advice, but it's not always necessary. And it's quite common for workers to represent themselves at the hearing stage, which will also help to keep costs down.

Now is the time for all of us to be wary of firms taking advantage, says Mr Eardly. "There is a prime opportunity now for companies to benefit from the recession and there are always maverick employers out there."

But he says he has never seen a vexatious claim being taken by an employee.

"If you are getting a solicitor, even just for initial advice, make sure to find out what the costs will be. You don't want to be bringing a case just to pay their fee," adds Mr Eardly.

Employees: Know Your Rights is written by Barrister John Eardly and is published by First Law

'I was right and they were wrong'

Graphic designer Aengus McCabe was working as a desktop publishing specialist for Galway-based US firm Merrill Brink International when he was told his job was being out-sourced in January 2008.

He had been with the company for four years.

"I got a redundancy package, which was pretty decent at the time, but when I logged onto Fas.ie some time later to check out jobs, I saw my own job advertised on it, with the same company."

He says he was very annoyed by the advert and contacted his Citizens Information office in Galway who advised him that he had grounds for complaint.

He then contacted the Labour Relations Commission.

"I was able to do everything over the web and the LRC website is very user-friendly," he says. "The LRC said there would be a hearing, but I was also advised to talk to a solicitor."

Aengus contacted an employment lawyer and the case was heard last September, where he opted to represent himself at the hearing.

"I was a bit intimidated at first, but my former employer didn't have a solicitor either, and it was very straightforward. It was just like being in court, except the hearing was in a hotel. They told me that within four or six weeks I would get a letter."

He got that letter in January and was delighted to see he had won, as his job shouldn't have been re-advertised. He was awarded €10,000.

"I was a bit disappointed with the money at first, because it's been a year now and my job was quite specialist so I still haven't found another one. I have a house and a mortgage in Galway so I don't want to move. But at the end of the day, I was delighted that I had won, and on the grounds that I was right, and they were wrong, so overall I am very happy with the outcome."

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