Employment law - The issue of a fair/unfair dismissal.

Have you ever been on the receiving end of the words ‘you’re fired’? Well, you’re in good company. The renowned academic Truman Capote, business guru Mark Cuban and a woman who needs no introduction, Oprah Winfrey, have all been fired. The latter, was deemed ‘unfit for television news’. In most circumstances where you have just been dismissed, it can be an extremely difficult and turbulent time. When an individual is dismissed, they are protected under The Unfair Dismissals Acts of 1977 to 2015. It is worth noting, that when I say protected, I do not mean that this legislation protects you from being dismissed - rather, it allows you to have recourse and redress if you have already been dismissed.

Firstly, in order to qualify for unfair dismissal, there must be an actual dismissal. Secondly, you must have at least 12 months service, or failing that you must have been (or believe that you were), dismissed on one of the nine grounds of discrimination i.e. gender, civil status, family status, age, disability, religious belief, race, sexual orientation or indeed membership of the travelling community. An individual is also deemed to be unfairly dismissed, if the dismissal relates to trade union membership, pregnancy or anything attributed to maternity leave. This list is non exhaustive and legal advice should be obtained to avoid ambiguity.

The Work Place Relations commission is the adjudicating body which deals with unfair dismissals. You have six months from the date of your dismissal to enter a complaint with the aforementioned commissions and failing that, you run the risk of being statute barred. There are exceptions where they will extend it to twelve months, however, these need to be exceptional circumstances and I would strongly advise that you speak to your solicitor when considering that.

Constructive dismissal is where you end your contract of employment because of the actions of your employer. Employees who can prove constructive dismissal can be returned to their jobs under their original contracts, but more often receive compensation for earnings lost due to their dismissal. Constructive dismissal is complex and should only ever be considered as a last resort when you feel your employer is not going to honour the terms of your contract. In a case for constructive dismissal, it is up to the employee, not the employer, to show that they had exhausted all avenues open to them, before resigning.

In order to successfully claim constructive dismissal, it would have to be a situation where you can reasonably say your job (as described in your contract) has already been terminated. This can be for a number of reasons:

  • Your employer may be breaching the terms of your contract
  • Your employer has indicated through their actions that they don’t intend to keep honouring your contract
  • Your employer has acted unreasonably in a way serious enough to justify your resignation.

The other side of the coin is if you are an employer and have just dismissed somebody. Under The Unfair Dismissals Acts of 1977 to 2015, the qualifying dismissal is presumed unfair unless it can be justified under certain grounds. It is weighted in favour of the employee because dismissal can have such a major impact on the life of the employee. I believe that employers must go above and beyond in order to protect themselves.

There are three hurdles which you must cross.

  • You must demonstrate that the dismissal was based on one of the fair grounds for dismissal covered under Irish Employment law – capability, competence, qualifications, conduct, redundancy, contravening the law, or other substantial grounds.
  • You must be able to prove that you followed fair procedures and that you acted fairly.
  • You must avoid any of the automatically unfair reasons for dismissal.

The common thread running through all of these grounds is, you must follow fair procedures. You will lose the protection offered by a fair ground if you fail to follow fair procedures when dismissing an employee. Essentially, an employee should have a process that they can follow, should they have a grievance with their employer, or indeed, any other member of staff.

If it is a case that you are a small business, there are private entities who offer a grievance procedure, which would protect you and your business going forward. If it is a situation whereby an employee’s behaviour has become unprofessional and indeed disruptive to your business, you must follow all procedures before dismissing the employee. What I mean by that is, you should not ever dismiss an employee on the spot but rather engage in a grievance process. Having an independent outside mediator attend for the purposes of resolving the situation, is always advisable too.

It was Theodore Roosevelt who said, “Far and away the best prize that life has to offer is the chance to work hard at work worth doing.” If you are an employer or employee who feels they have not had that chance, due to complications arising from either side of the relationship, you should protect your rights and talk to a solicitor today.




Cyber safety – kids and crime

There has been much discussion and debate around the issue of kid’s and their safety online - there have even been proposed laws to make it illegal for retailers to sell an internet-enabled device to a child younger than 14. Whether you agree with this or think it’s a step too far, there is no denying that it is increasingly important for parent’s to be aware of their kid’s online activities, the apps they use and how they engage with them. Personally, I think it depends on the kids and if the parents are happy for them to use smartphones, but be smart about it! Supervision and education are key. The internet and technology are here to stay.

Kids aren’t going to suddenly become safe online at a certain age. Parents need to be part of the process and need to empower their kids to use the internet and apps in a safe, informed and appropriate way. This is not just for their own education or development, it could even keep them out of getting in serious trouble with the law.

I have had cases, and they are becoming more common, where children are sharing extremely inappropriate images of themselves (otherwise known as sexting - taking or sharing explicit images or video using a mobile phone), and not realising that they are in fact, in possession of and distributing child pornography, as per The Child Trafficking and Pornography Act, 1998, which has recently been amended by The Criminal Law (Sexual Offences) Act, 2017.

Help them understand the law. This includes:

  • Possessing, taking or distributing images of someone who is under the age of 18 is illegal in Ireland.
  • This could even be argued if the person in the photo is a minor, and the one distributing, in possession of or taking the photographs.
  • If a child's mobile phone contract is in his or her parent's name, then the parent can be liable for what the phone is used for, and any indecent material that is saved or sent from it.

In 2017, CyberSafeIreland reported that:

  • Despite age restrictions of 13 and older on many social media services, the vast majority of children under 13 that they met already had a significant online presence.
  • Snapchat and Instagram remained the most popular instant messaging and social media apps along with Musical.ly YouTube, Viber and WhatsApp amongst the 628 children surveyed.
  • 22% of the children surveyed were in online contact with strangers. Most of these (14%) reported that they were in contact at least once a week and 6% of this number every day.
  • Nearly a third (32%) of children surveyed have either never spoken to their parents/guardians about online safety or have not done so in the last year.
  • In almost two-thirds (64%) of the workshops with 8-10 year olds, at least one child was playing adult rated games.

These are, of course serious and worrying issues for parents - but denying access to the internet won’t make these problems disappear. Instead, support and safeguard your kids with their online use. Many parents feel more digital education should be taught in schools and although a very good idea, greater parental responsibility is needed too. It’s a much more realistic and effective approach than new laws or regulations.

Put the power back in your hands. For any parents wondering what they can do, check the parental controls on devices. These are technical settings that you can use to restrict or control content or activities for your child on a particular app, device or network. As the old phone campaign told us, ‘It’s good to talk’, but in a very different context to what they had meant then. 'It's good to talk' to your kids about how they use their smartphones, now. Once they press the send button, they will no longer have control of the image or the consequences of sending it. And unlike Las Vegas - what happens on the Internet stays on the Internet.

For more, check out CyberSafeIreland at http://cybersafeireland.org/

In Conversation With Tim Kennelly….

Tell us a bit about the background to your career

I suppose it really started when I was studying for my FE1 exams and needed experience working in a firm. It was at the height of the recession and there were no legal apprenticeships to speak of. Not one.

I didn’t really know anyone in the law game so I did things the old fashioned way…I took out the Yellow Pages! I started making call after call to Kildare and Dublin firms and eventually got talking to the Principal Solicitor, Barry McCormack, of McCormack Solicitors in Newbridge. He said he didn’t have anything available but I asked could I drop in my CV. I put on my suit, headed straight over to him and we ended up chatting for ages.

From that meeting, I worked with Barry in an apprenticeship for three years, working part time as a bar man to finance myself and get the experience I needed. I’ll always be grateful to him for the opportunity he gave me, he has become a great friend and sort of mentor ever since.

How did you end up becoming a self-employed Solicitor?

During my training, I got a feel for court work and knew I wanted to set up on my own. I took the plunge after I qualified in 2012, working from a small office across the road from Naas Courthouse. It has been very hard work, without much time off in the last 5 years but it’s what I love to do. It’s a very, very competitive environment and it can be very stressful and challenging but I love helping my clients, and hopefully winning their cases for them. Many of them find themselves in real difficulty, ranging from family law issues, alleged criminal offences, financial problems or employment issues. We also look after personal injury cases – it’s a varied working day to say the least!

Being self-employed means that I am more flexible in the way I work and can adapt quickly and efficiently to my clients’ needs…many of them don’t work 9-5 anymore so I don’t either.

What does your working day look like?

Tim KennellyTo start with, it never really looks the same but a huge part of my job is talking to people. Before and after court, calls between my office, barristers, solicitors, clients, court staff and the Gardaí come in thick and fast. Information is the name of the game and you have to keep that circle of people updated and informed very quickly, as it can be very important and sensitive in many ways to their work, or their court cases. Court appearances take up most of the working week but there are special sittings in the evenings and weekends for some cases, with most Garda station call outs and prison visits taking place then too. We also offer flexible consultations during the week and at weekends, as you have to make yourself adaptable to meet people, who otherwise, wouldn’t have time to meet with you.

With the nature of this type of work, it can be challenging to make personal plans in advance but my wife, family and friends have been very understanding that it’s all part of the job – and anyone who is self-employed will tell you there is no ‘clock out’ button. I’ve had to miss a few birthdays, stags, even weddings but I knew what I was getting myself into starting out. The first few years were incredibly busy but I have much more support now with a great team in the office, and have learnt to say no the odd time too!

How do you defend people you know are guilty, or have done terrible things?

This one is always of interest to people when they find out you are a Criminal Defence Solicitor. Isn’t it funny how people never ask: "How can you prosecute someone you know to be innocent?" There is a huge difference between knowing someone is guilty and suspecting or believing they're guilty. We work under extremely strict rules of ethics and we're subject to the law.

If a client tells me they have committed an offence, I cannot then run a not guilty plea at trial unless they think they have committed the offence, when in law they haven’t, and I advise them of this. For example, just because a client admits hitting someone, it doesn’t mean they are necessarily guilty of assault, they may have acted in self-defence. However, I am what is called an officer of the court, and cannot mislead it.

Even if I do not necessarily believe my client’s account, I am still free to pursue the defence they offer. My doubts to innocence have been proved wrong quite a few times too, as the evidence has shown my client to be telling the truth. The court is the arbiter of truth, not me. Or, it might be the case, and often is, where a guilty pleas has been admitted to the court and we are mitigating to obtain a lesser sentence. If my client tells me they are innocent I have to act for them, because it is a cardinal rule of the profession that we are not allowed to refuse to represent someone because we don't like them or because we don't believe in their case.

It is a human right to be allowed a defence. However serious the allegation, however unpleasant, however vilified by society a defendant may be, the rule of law demands that a person or company receive a proper defence.

If you put yourself or a loved one in the position of being accused of a serious crime, you would want the best possible representation in court. We strongly feel that for any client to choose us to represent them in court or to instruct us on their case, that we should reward that choice with the very best result we can get them.

Until Divorce Do Us Part - how to deal with a marital breakdown

I don't think anybody getting married envisions themselves in the divorce courts down the line but what do you do if your relationship falls apart?

In my experience, the top three reasons people get divorced are infidelity, money, and a complete communication breakdown.

These causes do not discriminate who they can affect and there can be huge upset, confusion and stress for all involved going through this process. With that being said, the complicated thing with divorce is not dissolving the marriage – it’s sorting out the issues surrounding it.

Money, the family home and custody and access of children is really where the best legal advice, can make all the difference to the process and aftermath of divorce.

If it is truly your last resort, here is what you should know before getting a divorce:

  • Live in Ireland (You can't get an Irish Divorce unless one party has being living here for a year).
  • Make sure you were married - it might sound silly but make sure it was a valid marriage before you think about a divorce.
  • Wait 4 years. The Irish Divorce Act requires that the couple must have lived apart for at least four of the five years before proceedings are issued. Check with your solicitor as to what constitutes a legal separation.
  • Break up! The court must be satisfied that there’s no reasonable prospect of reconciliation and that both the spouses (and any children) are properly provided for.
  • Have you considered all the options? The Divorce Act requires the couple’s solicitor to inform them about the options of reconciliation, mediation and separation agreements. It is in place as a means to sorting out all the contentious issues before (or instead of) going to court.
  • Custody and access. Before you get divorced (or even break up), you should do some planning about where you are going to live; how you are going to live, who is going to take care of the children, who is going to maintain the children and how that will be divided up. If  you don’t, either spouse is entitled to apply for interim remedies including orders for periodical payments (maintenance), custody of children, safety or barring orders and an order entitling one spouse to sole occupancy of the family home.
    Every family is different, every case is different. Emotions can run very high at this point and sorting this out (if possible) early on, can be extremely beneficial to all involved. 
  • Take expert legal advice. Being able to make informed decisions will help you at this difficult time. Getting advice from an experienced family law solicitor - who is conscious of the potential long term consequences, for you and your family, could make all the difference to your future. It can also reduce stress, avoid mistakes and delays and ensure your best interests are before the court. If you can’t afford a solicitor, apply for legal aid.
  • Get expert financial advice. How are your pensions going to be divided? You may need a new mortgage or to start a pension or to invest part of your spouse’s pension awarded to you on divorce.
  • Try and resolve the main issues before you arrive in court. If you don’t, the lawyers will – and that will take time and cost money. A reminder of them are the custody arrangements, family home, maintenance, pensions, and inheritance.
  • Go to court! Family law cases are informal and private. Irish Divorce Law is not fault based so it doesn't matter how badly a spouse may have behaved, they are still entitled to a divorce. For financial or property orders, it is entitled to take into account the conduct of either spouse, it would be unjust to disregard it.

Don’t try and drag the children into it. It won't do anyone any favours and it won't look good in court.

Begin again. Divorce is not the end. In lots of ways, it can be a new beginning. Make sure your rights are protected to ensure you get the best chance to do just that.