Unlawful deduction of wages

 

Unlawful deduction of wages

 

A very recent decision of the High Court in Marek Balans -v- Tesco Ireland Limited considered circumstances in which an employee was not paid in accordance with the terms of his Contract.

 

This case involved an interpretation of Section 5(6) of the Payment of Wages Act 1991. The Act prohibits unlawful deductions from an employee’s wages. Section 5(6) states that if the total amount of wages paid is less than the total amount that is properly payable then the deficiency should be treated as an unlawful deduction unless the employer can show that the deduction was due to an error of computation.

 

This was a case that was initially dealt with by the WRC and was appealed to the Labour Court and subsequently appealed to the High Court.

 

The Employee had entered into a number of Contracts with his employer in 2012, 2013 and in 2015. The 2015 Contract provided for an increase of his basic pay from €9.69 to €11.87 but the employer contended that this was an error in that the basic rate was calculate in a manner which incorrectly incorporated an agreed 20% premium for unsocial hours which the Employee had received under his 2013 Contract. The employer paid the wages in accordance with the 2015 Contract between June 2015 and October 2016 but thereafter paid the employee a reduced figure of €10.29. The employee contended that this was an unlawful deduction with which the WRC agreed. This was overturned by the Labour Court and that there was no unlawful deduction as the rate of pay specified in the plaintiff’s contract of employment arose as a result of a computational error and was not therefore properly payable.

 

The matter came before Mr. Justice McGrath in the High Court and he determined that the crucial issue was the interpretation of wages that were “properly payable” and in this regard he had to assess whether the deficiency in payment arose as a result of an error of computation. He disagreed with the Labour Court in that he held that the labour Court had unwittingly conflated as to whether wages were properly payable under the 1991 Act with the question as whether there had been a deduction or whether there had been a deduction and whether the deduction came with being the exception governed by Section 5(6).

 

He allowed the Plaintiff’s appeal and sent it back to the labour Court for further consideration. Holding the Plaintiff’s claim he was simply accepting that the Labour Court may still have found that the appellant’s case was without merit. The Labour Court had to determine it on the correct basis. The question which the Labour Court had to determine was whether the wages were properly payable and not to confuse that issue as to whether there had been a deduction or whether the deduction came within the definition of Section 5(6).

 

In summary, the Court was essentially saying that if an employer is paying somebody less than is set out in the Contract of employment this will not be considered as a computational error for the purpose of the exception set out in Section 5(6) of the 1991 Act. The burden of proof will lie with the employer to prove that the amount that the employer has been paying was properly payable.

 

For many it highlights the importance of employers making it very clear as  to what was intended by the employment Contract.

 

For further information on any employment issue, please contact Brendan Dillon or Donna Phelan on 01-2960666 or info@dillon.ie

The right to light is not an automatic right in Ireland

 

 

The right to light is not an automatic right in Ireland

 

A right to light can be defined as a private, legally enforceable easement or right to a minimum level of natural daylight illuminated through a “defined aperture” (usually a window) whether conferred express or by implied grant or obtained at common law by a process of long uninterrupted enjoyment known as prescription.

 

The introduction of the Land and Conveyancing Reform Act 2009 has abolished all easements to light or rights to light unless they are registered before 2021 or the right is given by way of an express grant.

 

The nature of most of the rights to light in Ireland is that they must be expressly granted as the law has held that no person or building has an automatic right to light.

 

In the event that a built structure significantly affects the quality of the light received, the affected party will have no right to sue to prevent this, unless there is already an express grant of a right to light in a legal form in place.

 

The 2009 Act abolishes the creation of easements to light in Ireland that were not registered before 2021. After that date, it is important to note that any right to light must be expressly granted by deed or else no such right will exist.

 

For any further information in relation to matters regarding the right to light, please do not hesitate to contact Brendan Dillon on 01-2960666.

 

Welcome to Donna Phelan – New Solicitor to the firm

We are delighted to announce that we have appointed Donna Phelan as solicitor in Dillon Solicitors. Donna joined the firm in September 2020. Donna comes with a wealth of experience, having been a Legal Executive for 11 years prior to qualifying as a Solicitor in 2018. She deals primarily in the area of Litigation and has been involved in many contentious personal injuries cases. She also has extensive experience and skill in advising clients on Probate, Family Law and Property. Donna enjoys walking her dogs and running in her free time and is an avid Rugby fan.

Welcoming Donna to the team, Brendan Dillon, Managing Partner of Dillon Solicitors said: “As we continue to see growth in our practice, it is a pleasure to welcome Donna to the Dillon Solicitors team. Donna brings with her specialist knowledge in the area of litigation and Personal Injuries cases, which will be of considerable benefit to both our team and clients”.

 

Ombudsman believes decision could help 7,000 customers

 

Ombudsman believes decision could help 7,000 customers

Included among a list of 180 legally binding decisions by the Financial Services and Pensions Ombudsman (FSPO) on the 7th August include a decision to award compensation of €22,000 due to one particular customer due to “particularly difficult circumstances suffered” as a result of substantial overcharging which arose because of the denial by the bank in question of a tracker mortgage interest rate.

In a statement accompanying the publication of the decisions. The Ombudsman Ger Deering said that it was his understanding that approximately 7,000 customers of a range of banking institutions would be able to benefit from some of the rulings and complaints about tracker mortgages.

Of the 180 decisions issued between January and May of this year 72 were either fully, substantially or partially upheld whereas 127 were not upheld.

In one case a credit card was issued in a customer’s name without the customer’s knowledge or consent. The bank in question refused to correct the customer’s credit profile and the FSPO awarding compensation amounting to €10,000.

For any further information in relation to matters regarding tracker mortgages please don’t hesitate to contact Brendan Dillon on 01-2960666

Gestational Surrogacy

 

Gestational Surrogacy

There are two types or surrogacy; gestational surrogacy and traditional surrogacy. For the purposes of this article I will focus on gestational surrogacy.

Gestational surrogacy is where a surrogate carries the child conceived using the egg of the intended mother or a donor egg and the sperm for the intended father. The procedure is carried out by In Vitro Fertilisation (IVF). After the child is born it is parented by the intended parents.

There is no legislation in Ireland that deals with Surrogacy and therefore there are a lot of legal implications. One legal implication is that in Ireland the Surrogate is the child’s legal parent at birth and therefore the child’s guardian.

While there is no legislation in Ireland that deals with surrogacy arrangements it is not prohibited. In Ireland surrogacy arrangements tend to be done altruistically and are not enforceable.

Internationally, there are countries where surrogacy arrangements are well regulated and many couples have chosen to travel to counties such as the Ukraine and Canada, however the process is very expensive. Aside from the guardianship complexities mentioned above, with international surrogacy the issue of citizenship also needs to be dealt with.

In Ireland as mentioned above, the woman who gives birth to the child is recognised as the child’s legal mother. For heterosexual couples and same-sex male couples, guardianship will be based on DNA evidence from the father. However, in Ireland a single woman or same sex female couple cannot seek parentage or guardianship.

 

Ukraine

Commercial Surrogacy is legal, but only for married heterosexual couples with medical evidence which confirms that for medical reasons a pregnancy is not advised.

Under Ukrainian Law;

  • The child is considered to be the child of the Irish parents from conception and their names appear on the birth certificate.
  • The surrogate has no parental right to the baby.
  • After the child is born, DNA evidence will establish the paternity of the Irish father.
  • As the father is an Irish citizen, he can apply to the Irish consulate in the Ukraine for an emergency travel certificate which permits the child to travel to Ireland with the father.
  • The Irish consulate requires the father to provide an undertaking to notify the local heath centre of the child’s presence within 2 working days of arrival in Ireland and to commence the Court application within 10 working days of the child’s arrival.

Canada

In Canada commercial surrogacy is prohibited and only allows altruistic surrogacy. It permits surrogacy for heterosexual and same sex couples.

There are different law and procedures in each province and so legal advice is essential. In some provinces the intended parents’ names automatically go on the birth certificate but in others a Court Order must be obtained.

The child automatically obtains a Canadian passport and so no emergency travel documentation is required. An undertaking to carry out the Court process on return to Ireland is also not required, however, the Court process must be carried out in Ireland.

Irish Court process

The following Orders must be sought on return to Ireland and the application can be made in the Circuit Court or High Court;

  1. Declaration of Parentage
  2. Declaration of Guardianship
  3. Declaration of Custody
  4. Dispensing with the necessity for the consent of the surrogate regarding passports.

 

The father applies for the orders, once his parentage has been established by DNA evidence. In Ireland the surrogate is considered the legal parent and guardian of the child as she gave birth to the child. The intended mother or second parent cannot establish a legal relationship with the child until she has shared the day to day care of the child with the father for a period of two years.

 

Next Steps

The Scheme of Assisted Human Reproduction Bill 2017 sets out guidelines for gestational surrogacy in Ireland but it has not yet been made a law.

 

Therefore it is vitally important to take expert legal advice prior to entering into surrogacy arrangements either in Ireland or Internationally.

 

For further information on this important area of family law please contact Lorna McArdle or Brendan Dillon on 01 2960666

 

Restrictive Covenants in Employment Agreements

 

 

Restrictive Covenants in Employment Agreements

We are often asked to advise clients both from an employer and an employee perspective as to whether a particular restrictive covenant is enforceable.

 

What is a restrictive covenant?

 

A restrictive covenant is a clause which is usually inserted in an employee’s contract and is designed to exert some measure of control over the employee’s actions after they leave employment. In particular it is usually designed to prevent the employee from competing with the employer’s business or from taking clients/customers. It can also be designed to prevent the employee from soliciting clients or employees from their former employer.

 

The enforceability of such clauses has to be placed in context with the right of every employee to earn a livelihood. If a restriction unfairly impinges upon that right and prevents the employee from earning a livelihood then there is a string possibility that the Courts will be unwilling to uphold the restriction in question. For instance, a clause that prohibits an employee from working for a competitor at all could prevent the employee from earning a livelihood and is unlikely to survive the Court’s scrutiny.

 

A recent example of where a restrictive covenant fell foul of the test of reasonableness was in the case of Ryanair –v- Bellew which came before the High Court in January 2019.

 

The Court was asked to consider a twelve month non-compete clause in relation to Mr. Bellew who was a COO and who resigned to take up a position with a rival low cost airline. Ryanair sought an injunction to prevent Mr. Bellew from taking up the position because they felt that he had substantial information as part of their inner strategy group which could have been passed on to his new employer.

 

The Court felt that a twelve month non-compete clause was reasonable. However, it held that the clause had to be limited reasonably to reflect the role which the employee was carrying out. In this case, the restrictive covenant prevented Mr. Bellew from working any role with any airline i.e. it prevented him from taking up a lower position such as a baggage handler or a member of cabin crew and it also prevented him taking up a role with a “legacy airline” i.e. a non-low cost carrier.

 

Mr. Bellew argued that he was subject to a confidentiality clause and that it was his intention to be bound by that clause ,ie that this was a sufficient defence to the fear expressed by Ryanair that he would share some of the crucial information/strategy he had learnt while in the employment of Ryanair. The High Court felt however that such a clause would be very difficult to enforce and that if the restrictive covenant was reasonable and enforceable that it would supersede any confidentiality clause.

 

In the circumstances of this particular case however it found that the restrictive covenant was unreasonable in that impeded Mr. Bellew taking up any position within the airline industry even though Ryanair argued that they would not have brought the application if Mr. Bellew had sought a position with a legacy airline. The case is currently under appeal.

 

In summary, in order for an employer to be able to enforce a restrictive covenant it must be able to demonstrate that the covenant is  fair, reasonable necessary and proportionate.

 

It must protect an identifiable business interest of the Applicant from unjust attack.

 

It must be reasonable in relation to the geographical limits to which it wishes to restrict the employee.

 

It must be reasonable and the test of reasonableness will be assessed with reference to when the contract was entered into.

 

What is very clear from all of the case law is that the Court will not rewrite a restrictive covenant. They will either uphold it or strike it down.

 

Accordingly, it is very important to take legal advice in relation to the preparation of such restrictive covenants and both employers and employees alike should take legal advice at the time when they are proposing to enter into these agreements.

 

For any advice in relation to such matters please do not hesitate to contact any of the employment solicitors in Dillon Solicitors on 01-2960666

What Constitutes Proper Provision In Family Law Cases

 

 

What Constitutes Proper Provision In Family Law Cases

Proper provision is a concept provided for in the 1996 Family Law Divorce Act. It is a test which the Court must apply when making decisions either in the context of Judicial Separation or a Divorce.

In order to assist the Courts the Family Law Act 1995 and the Family Law Divorce Act 1996 set out an identical set of factors which the Court must have regard to when deciding what constitutes “proper provision” .

These factors include the following:

1. The income earning capacity and resources of the parties now and into the future
2. The accommodation needs of the parties
3. The reasonable expectation of the parties as to their standard of living into the future
4. The length of the marriage and the time they were living together with the age of the parties
5. The ages and needs of the children
6. If either of the parties suffer from any mental disability
7. Whether either party made any sacrifice to their career should be taken into account
8. Any statutory benefits which either party may be in receipt of

There have been several cases in the High Court which have established certain principles in what are known as “ample resources” cases. These would include the principle that inherited assets or indeed assets brought into the marriage are not to be regarded as assets of the marriage and are not be considered by the Court unless it would be unjust to exclude them.

It should be borne in mind however that in most Circuit Court cases the reality is that if the Court were to adopt this position i.e. exclude inherited assets/assets brought into the marriage in many cases it would in fact be unjust to exclude them as it would disadvantage one of the parties significantly through no fault of theirs and might impact on their ability to achieve suitable accommodation for them/the children of the marriage or a suitable and reasonable income going into the future.

It is a matter for the Court to try and assess what is objectively fair taking into account the contributions that each party has made to the marriage and also any sacrifices that any party might have made such as one of the spouses remaining at home to look after the children while the other spouses earned substantial income. It has to be borne in mind that for the spouse that has stayed at home it would be much more difficult to kick start his/her career from that point onwards particularly if he or she is still looking after the children whereas the spouse who has cultivated a successful career can continue in that vein.

Ultimately, every case must be judged on its own circumstances and the facts of the particular case. For this reason, advice of an experienced Practitioner should always be sought.

For further advice on this or any Family Law Matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666

Legal issues arising from a broken engagement

 

 

Legal issues arising from a broken engagement

 

It is still customary that parties get engaged to married before they get married. This gives rise to issues that may arise where that engagement is broken and where the parties have entered into agreements on foot of that engagement.

 

The purpose of this article is to highlight some issues that arise from a broken engagement.

 

  1. Property of engaged couples

Where a couple have purchased property together then any dispute in relation to that property is to be determined under Section 44 of the Family Law (divorce) Act, 1996 which states that any disputes about property between a couple who engagement has ended is treated the same way as if the couple were separated or divorced. This only applies to property where one or both of the spouses have a legal or beneficial interest and it does not apply to property which either party acquire after the engagement has ended. If one of the parties wishes to make a claim to property owned by the other party and where he or she is claiming a beneficial interest this action must be instituted within three years of the engagement ending.

 

2.  Preparations for the marriage

When an engagement and one of the couple has incurred substantial expenses in preparing for the marriage and application can be made for a reimbursement of these expenses by the ex-fiancé.

 

3. Gifts from third parties

Sometimes the parties to an engagement may have receive gifts and there is a presumption that is given to both of them as joint owners. There is a further presumption that the gifts will be returned if the marriage does not go ahead and the donor of the gifts could seek the gifts back.

 

4. Gifts between an exchanged couple

Where gifts have been exchanged and particularly an engagement ring there is a presumption there given on the condition that the gifts including the engagement ring will be returned if the engagement ends. However if one of the engaged couple’s dies then it is assumed that the gifts were given without conditions and the surviving fiancé shall be entitled to keep any such gifts unless such rebutted is rebutted.

 

For any further information or if you have any queries on any family law matter please do not hesitate to contact Brendan Dillon or Lorna McArdle on 01 296 0666.

EXECUTOR’S DUTIES

 

EXECUTOR’S DUTIES

 

Being appointed as an Executor can be a daunting task.  We have set out below a summary of matters which you as Executor would be responsible for.

 

These would include the following:

  1. You must gather together all information in relation to any assets held by the Deceased as well as details of any liabilities.
  2. You must make sure that any outstanding debts and taxes are paid and file an income tax return.
  3. You must pay the funeral expenses.  Financial institutions will usually allow for the funeral expenses to be paid without a Grant of Probate having been obtained where you provide them with the receipt.
  4. The Executor must make sure the spouse (or civil partner) and any children are aware of any legal rights they may have from the Deceased’s Estate.
  5. You must insure any property held by the Deceased as it is a duty of the Executors to maintain the Deceased’s assets pending distribution.  It is particularly important to make sure that you notify any insurance company that is insuring any property held by the Deceased if the properties are now vacant as this would be a change to the terms of the policy.  Usually when you notify the insurance company they will change the policy to fire cover only.  You should also seek to have public liability insurance put in place also
  6. You must ensure that social welfare are notified of the death of the Deceased and that any payments being made by social welfare are stopped and any overpayments refunded to them.
  7. Where there are beneficiaries living abroad it is particularly important that you are aware as Executor that there is a secondary liability on you regarding any tax payable by the beneficiary living abroad.  No funds should be paid to beneficiaries living abroad until they have filed a tax return and any monies due to Revenue have been paid and you have received confirmation from Revenue that you can distribute the monies to any beneficiaries living abroad.

 

Should you have any queries in relation to the above or if you wish to enquire about taking out a Grant of Probate please do not hesitate to contact us at info@dillon.ie or by contacting us on 01 2960666.

Annual Licensing Renewals 2020

 

 

Annual Licensing Renewals 2020

 

It’s that time of year again!

Even in the midst of these current strange times, the annual licensing dates cannot be forgotten. Here are the relevant dates for Dublin District Court:

  • Thursday 24thSeptember, 2020 –  Confirmations and Certificates of Transfer, Objections and General Exemptions
  • Monday 28th September 2020 –  Clubs
  • Wednesday 30th September 2020 – Dance
  • Friday 2nd October 2020 – Music and Singing
  • Friday 2nd October 2020 – Restaurants

The courts have requested that stamped and filed documents be lodged as early as possible but, no later than 1 September.

Given that many of the applications require a newspaper advertisement published at least 21 days in advance, now is the opportune time to begin preparations with a view to finalising everything in good time and avoid any delays.

We would be delighted to advise you and move your application.

Please contact us by email at info@dillon.ie or call us on (01) 2960666 for more information on what is required and the costs involved.