Employers Obligations – Sunday Work Entitlements

Employers Obligations – Sunday Work Entitlements

The recent High Court decision in Trinity Leisure Holdings Limited t/a Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova held that an express statement in a contract of employment that working on Sundays was taken into account when setting an employee’s wage discharged the employer’s obligation with regard to Sunday work. It is the first time the High Court considered this area.

The Facts of the Case

The employees worked 2 out of 3 Sundays and their contracts expressly specified an hourly rate “which includes your Sunday premium based on you getting every third Sunday off”. The contract did not explain the Sunday premium in any detail beyond that. The employees argued they did not receive their Sunday entitlements.

The Law

Section 14 (1) of the Organisation of Working Time Act 1997 provides that an employee required to work on a Sunday shall be compensated by the following means, where working that day is not otherwise taken into account when determine their pay;

  • An allowance
  • An increase in the rate of pay
  • Paid time off in lieu
  • Combination of two or more of the above

The Decision

The High Court allowed an Appeal to reverse the Labour Courts decision to award 30% premium for all Sunday hours worked between a certain period of time. The employer argued that the contracts of employment discharged the obligations under the Law outlined above. The High Court noted the wording was clear and not buried in small print. The High Court also held that the Labour Court erred in law by asking the employer to explain by way of breakdown any statement to the effect that an hourly rate takes into account the obligation to work on a Sunday.

The Outcome

  1. The burden is now on an employee to prove they were not paid their Sunday entitlement and where a contract states the pay takes into account an obligation to work Sundays, the employee must provide evidence to prove otherwise;
  2. It is not accepted that an employer is required to identify in the contract of employment precisely what element of pay is attributable to Sunday work.

If you have any queries regarding employment law or litigation, please do not hesitate to contact Niall MacCarthy or Brendan Dillon of this office.

Working Time – Employer’s Responsibilities

 

Working Time – Employer’s Responsibilities

Legislation – Organisation of Working Time Act 1997 (The OWT Act)

What does it do?

The Act regulates the rest periods and hours of work for employees

What are the legal break entitlements for employees in a working day?

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

 

Non-compliance with Act, what implications are there?

failure to comply with the Act can potentially lead to a fine for employers of up to a sum of €2,500 and a possible claim to the WRC, not to mention reputational damage associated with the ill treatment of employees.

 

What responsibilities do an Employer owe to an employee under this Act;

Records – The employer must keep adequate records of employees rest breaks, start and finishing times, hours worked on a daily basis and annual leave taken and these records must be maintained for a period of three years.

 

How can an employer keep proper records?

Different methods can be used such as a clocking –in-system, designated IT systems or paper records, any of which may be accessed by an inspector from the WRC (Workplace Relations Commissioner) if required.

 

What are an employer’s obligations to an employee for Night Work?

An Employer owes additional obligations to Employees who works at least three hours between the hours of midnight and 7a.m. normally or to an employee whose hours of work between midnight and 7a.m. amounts to more than 50% of the employees total number of hours worked in a year. If this is the case, the employee is considered a night worker. Night workers cannot work more than eight hours in a 24 hour period which may be averaged out over a period of two months.

 

What are an employees Annual leave entitlements?

  •  Four working weeks in a leave years in which the employee works 1,365 hours
  • one third of a working week for each month in the leave year in which the employee works at least 117 hours
  • 8% of the hours the employee works in a leave year subject to a maximum of four working weeks
  • Generally an employee can work a maximum average of 48 hours in each period of seven days.

 

Are employees allowed to work outside of office hours?

An employee may be entitled to a claim under the OWT Act for working outside of hours for e.g. sending or receiving e-mails.

 

What does the European Commissioner’s June 2019 adoption of the Work Life Balance Directive (The Directive) provide?

The Directive seeks to increase the participation of women in the workforce, particularly through flexible working arrangements and four month’s parental leave.

Caselaw – Keepak V. Grainne O’Hara –

A business executive at a subsidiary of meat producer Kepak, was awarded €7,500 over repeated breaches of the OWT Act having been required to deal with out-of-hours work emails, including some after midnight, that led to work in excess of 48 hours a week.

 

Does Probate affect the Sale of Property?

 

Does Probate affect the Sale of Property?

 

When a property that forms part of a deceased person’s estate and that property is to be sold, an application must be made to the Probate Office for a Grant of Probate (or another type of Grant depending on the situation). The sale of the property cannot complete until the Grant has issued from the Probate Office.

For a Sale

The property can be put on the market while the Probate application is being dealt with. Once the property is sale agreed, the Solicitor can issue a Contract for Sale with a special condition in the Contract which states that the Sale is subject to Probate and that the closing date will be after the Grant issues from the Probate office. The contract will usually specify how long after the Grant issues the closing date will be In most cases it is 7-10 days.

This means that the Solicitor for the purchaser can review the Contract for Sale and title and raise any queries they have in relation to same while the Grant is pending.

All matters can be dealt with while the Grant is pending and the sale can be ready to conclude when the Grant issues.

 

For a Purchase

When purchasing a property that is subject to a Grant of Probate (or another type of Grant depending on the situation), it is important to enquire with the Vendor’s Solicitor as to whether or not the application has been submitted to the Probate Office and if so when it was submitted.

Once the application has been submitted, the Grant will usually issue within 12 weeks. The Probate Office also provide updates as to what application dates they are currently working on, so knowing the above information will provide you with an estimated closing date.

If the application has not yet been submitted, you should enquire with the Vendor’s Solicitor as to when they will be in a position to submit the application. Some Probate cases can be very complex and take a lot of time to finalise the application so knowing what stage it is at is important. If the application has not yet been submitted to the Probate Office, there could be some delays with the transaction concluding.

If you are obtaining a loan offer to purchase the property, you should pay careful attention to the expiry date of your loan offer, to ensure same does not expire prior to the expected closing date.

 

For further information in relation to any Probate matters do not hesitate to contact us on 01 2960666 or at info@dillon.ie

What to do to avoid losing your Right of Way

 

What is A Right of Way?

It arises when you must pass over a piece of land owned by someone else to access your own land.

A Right of Way can be established by long use. Previously you had to prove continuous use for a period of 20 years. However, under the Law and Conveyancing Reform Act 2009 a person can claim a right of way if they can prove continuous use for 12 years.

A Right of Way can also be established by Agreement. The parties may agree that a Right of Way needs to be created. If a right of way is being created by deed or agreement the parties to the agreement may include conditions in the agreement for the use of the right of way.  Once the right of way is agreed and recorded in writing it is usually registered.

How do you register a Right of Way?

To claim a Right of Way, you must swear an Affidavit which sets out all details in relation to the Right of Way. A Land Registry compliant map must also accompany the Affidavit identifying the right of way. These are then submitted to the Property Registration Authority.
The PRA will then notify the owner of the other property concerned and, once the application is not contested, the right will be registered.

If the right of way is contested, an application will have to be made to Court and the Court will decide if a Right of Way exists. If a Court Declares that the Right of Way does exist, you can then register this in the Property Registration Authority.

Changes to Registering a Right of Way

If you access your property by using a right of way over another person’s land you need to make sure that that right of way is registered with the Property Registration Authority (PRA).
The Civil Law (Miscellaneous Provisions) Act 2011 extended the deadline for registration until the 30th November 2021.
After the 30th November 2021 you will not be able to register the right of way in the Property Registration Authority without first applying to Court.

 

Tenant entitled to bring proceedings under Multi Unit Development Act 2011

 

Tenant entitled to bring proceedings under Multi Unit Development Act 2011

In the recent case of Kennedy v Sweepstakes Owners Management Company clg, the High Court held that a Tenant of an apartment may bring proceedings under the above Act against the management company who he alleged was enacting house rules contrary to the legislation.

Section 23 of the Act provides that an owners management company may make house rules and the Act goes on to state that these house rules must be made in a manner consistent with the objective of the fair and equitable balancing of the rights and obligations of the occupiers and the unit owners. Mr. Kennedy alleged that the house rules in the development where he resided were in breach of the Act.

Section 25 of the 2011 Act sets out who may bring proceedings and this section does not specifically refer to “Tenants”. The Tenant was not a member of the management company, the Landlord was. However, section 25 (1)(f) states “with the permission of the court, such other person as the court sees fit”.

In this case, the court held that the Tenant had a rational basis for his grievance and was directly affected by the house rules in question and was thus granted leave to bring proceedings under section 25 (1)(f).

If you have any queries in relation to Landlord and Tenant matters or litigation generally, please contact Niall MacCarthy or Brendan Dillon of this office.

 

Retirement Planning

 

Retirement Planning

It is important to plan for your retirement, particularly as a business owner in terms of your exit from the business. Planning should start years in advance of the intended date of retirement.

The possible routes for leaving the business include the following:

 

  1. Transfer to a family member

This can have its own difficulties but the possible advantage is CGT business relief may be available if there is a gift element to the transfer. CGT may arise but this may be mitigated by entrepreneur relief or retirement relief.

 

2.  A management buy out

If there is an effective management team who may be in a position to take over the business, this may be an option whereby there could be arrangement of buy back of shares from an exiting shareholder. The benefit of this option is that payment for goodwill is made.

 

3.  An open market sale

Again this can include shareholders receiving value for the goodwill held in a business. Certain discounts may apply however where the goodwill could be connected to the party leaving so anyone buying into that would want some sort of deduction on the actual goodwill value. It can however be difficult to identify a purchaser for an open market sale.

 

4.  Liquidation

If the above options aren’t available the decision may be made to liquidate the business. The disadvantage with this is that the value of the goodwill is lost and it is likely to result in employees losing their jobs.

 

Your retirement plan should include taking tax advice to check any possible reliefs available so that whatever decision is made is best for your particular business.

Dillon Solicitors Shortlisted for LawNet Award 2019

We are delighted to announce that we have been shortlisted in the best Business Development/Marketing category for the LawNet annual Awards 2019.

Dillon Solicitors is the only Republic of Ireland member of Lawnet which is a UK based group of Firms that are focused on the delivery of a highest standards of client service.

The Firm has embarked on a programme of marketing activities which includes ezines and regular articles on our website which we hope are of interest and relevance to our clients.

 

Ronald McDonald House Cooking for families programme

On Tuesday the 10th of September fifteen members of the Dillon Solicitors team spent the day in The Ronald McDonald House Cooking for families programme.

We had two groups, one making lunch and one making dinner.

This activity was in line with one of the Firm’s core values in “giving back to the community”.

Cooking4Families helped us “give back to the community” as their programme helps you provide the families of very sick children In Crumlin Hospital with a healthy, home-cooked meal after a long and often times stressful day at the hospital and relieving them of the added worry of having to cook themselves.

We hope this small contribution gave some comfort to the families of Ronald McDonald House.

This experience was certainly fuel for our souls!