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2012 Archives

The Tupe regulations should be a critically important consideration if you are selling your business or if you are working in a business which is being taken over.

tupe-regulations

The Transfer of Undertakings Directive of 1977, which became part of Irish law by the European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations, 1980, protects the rights of employees where the business in which they are employed is transferred to a new owner.

What is an undertaking?

It is important to note that the TUPE directive covers undertakings and businesses or parts of undertakings and businesses-this leads to the critical question of what an undertaking is and as there is no definition in the legislation it has led to much case law with each case being decided on it’s own particular facts.

 

 

Key elements of the TUPE regulations

The key thrust of the TUPE directive is that the rights and obligations in respect of employment contracts of the transferring business are transferred to the new business.

  • There must be a change of employer-this is a fundamental criteria
  • A change of employer can occur where full ownership does not change (management responsibility may change and transfer to a subsidiary for example)
  • Pension entitlements are excluded insofar as they do not have to be continued by the new company
  • The parties to a transfer have an obligation to notify, inform and consult with employees or their representatives
  • If TUPE legislation is breached the problem rests with the new business (the transferee)
  • The TUPE directive does not apply where the reason for the transfer is the insolvency of the transferring business.
  • TUPE also does not apply where the business is transferred by a transfer of shares
  • TUPE may apply even where there is no agreement between the two businesses, for example where a lease or franchise is surrendered by operation of law.

 

Who does TUPE apply to?

Firstly employees but also persons having an employment relationship with the transferor. This may mean agency workers, depending on who pays them, for example and the Labour Court has held that agency workers can be covered by the directive, depending on the particular circumstances of the case.

Conclusion

If you are thinking about purchasing a business in Ireland or the EU there is quite a lot of complex issues which you would be well advised to obtain legal advice for.

There is considerable body of decided case law which teases out many issues that have arisen in this area-matters like

  • the cessation and resumption of a business prior to transfer,
  • what is an undertaking,
  • who is covered by the legislation,
  • whether public bodies are undertakings,
  • questions surrounding dealerships and franchises,
  • transfer of part of an undertaking,
  • the difference between an “activity” and an undertaking and so forth.

For this reason do consult a solicitor if you feel that your rights have not been upheld in this potentially complex area.

By Terry Gorry Google+

What is constructive dismissal?Constructive dismissal in Ireland is covered by the Unfair Dismissals Act, 1977 in section 1(b) as it provides that a dismissal is, among other definitions,

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

 

It is one of the most common employment claims taken by employees against former employers.

 

Essentially where an employee terminates his employment as a result of his employer’s conduct he may be able to successfully bring a case for constructive dismissal.

 

It is vitally important to note that in a constructive dismissal case the onus of proof is on the employee as he/she needs to prove that his/her resignation was justified. This can be contrasted with a case of unfair dismissal where the employer must prove that the dismissal was fair and justified.

 

Examples of potential constructive dismissal cases

Some examples of circumstances giving rise to a claim for constructive dismissal are set out below. However it is vitally important to understand that in all legal cases, the particular circumstances of the case will be a huge factor in success or failure and the examples below are not definitive or exhaustive.

 

  • A unilateral reduction in pay

This may give rise to a case for a successful constructive dismissal case as it may be a material breach of a fundamental clause in the contract of employment.

 

  • A change in job function

A unilateral change in the functions of your job may give rise to a successful constructive dismissal claim.

 

  • Adverse working environment

 

  • Change of work location

Where the contract of employment does not make provision for a change of work location it can give rise to a claim.

 

  • Undeserved warnings
  • Sexual harassment in the workplace
  • Abuse in the workplace
  • Change in work hours
  • Conduct of fellow employees.

All of the examples above have given rise to successful claims for constructive dismissal on one occasion or another; however this does not mean that these situations will automatically lead to a successful claim.

 

Remedies for constructive dismissal

Possible remedies for unfair or constructive dismissal which the EAT (Employment Appeals Tribunal) can order include

  • Reinstatement in the job
  • Re-engagement
  • Compensation.

 

To bring a case under the Unfair Dismissals Act, 1977 you will need to have at least one year’s continuous service with the employer and have exhausted all internal grievance procedures of the company.

 

You must also bring your claim within 6 months of the date of termination of your employment (12 months in exceptional circumstances) and can bring it to a Rights Commissioner who will make a recommendation or you can bring your complaint directly to the Employment Appeals Tribunal who will issue a determination.

 

This determination of the EAT can be appealed to the Circuit Court by either you or the employer.

 

Word of warning to employees

Take legal advice before doing something as drastic as resigning your position of employment and exhaust all internal grievance/complaints procedures as this will ultimately strengthen any case you bring.

By Terry Gorry Google+

Generally criminal proceedings are started in the District Court (although more serious offences can be initiated in the Special Criminal Court) and are started in one of two ways-by way of District Court summons or the charge sheet procedure.

Most criminal prosecutions in Ireland are brought by the DPP (Director of Public Prosecutions) although other entities can also prosecute crime in Ireland.

The Attorney General, Dublin City Council, the Competition Authority and others also have the power to bring criminal proceedings.

 

1. District Court Summons Procedure

A District Court summons is basically an order to appear before the District Court to answer a complaint.

This complaint will have been made by a member of An Garda Siochana and on foot of this complaint a District Court clerk will issue a summons for the attendance of the accused before the District Court to answer the complaint.

 

The Validity of the Summons

In order for a summons to be valid it must

  • State in ordinary language details of the offence of which you are accused
  • It must give you the time, date and location of the District Court before which you must appear.

Service of the summons can be carried out in person by a Guard or by post and it must be served 7 days before the Court date.

If there is a serious defect in the Summons, for example omitting the location of the court, then the summons will be struck out by the sitting Judge.

 

Time Limits for the Issuing of A Summons

The time limit for the issuing of a summons is that the complaint must be made to the District Court clerk within 6 months of the alleged offence, provided the offence is a minor or summary offence.

 

Indictable Offences Time Limits

Indictable offences do not have time limits imposed and can be prosecuted at any time after the alleged offence.

 

2. Charge Sheet Procedure

Offences can also be prosecuted by way of the charge sheet procedure in the District Court.

The charge sheet procedure involves the arrest of the alleged offender and transportation to the garda station where the arrested person will be given a sheet which sets out the facts of the alleged offense and the charge.

Once the charge is read out to the accused person, any remarks or comments made by him will be noted on the charge sheet.

The accused person may be released on station bail, provided there are no outstanding warrants for his arrest.

If the accused is released on bail he will have to enter a recognizance to compel his appearance before the next sitting of the District court. If he is refused bail he can apply for bail to the Judge at the District Court sitting before which he appears.

If the accused person fails to appear a “bench warrant” will be issued by the Judge for the arrest of the accused to bring him before the court to answer the charges against him.

Once the accused is before the District Court the arresting Garda will give evidence of arrest, charge and caution and will also give evidence of any comments made by the accused.

The charge sheet is then lodged with the District Court clerk.

These are the two methods by which you will find yourself before the District Court to answer criminal charges.

If the alleged offense is not a minor offense but an indictable offense the accused may be sent to the Circuit Criminal Court, the Special Criminal Court or the Central Criminal Court.

If you are in doubt whether you need a solicitor to represent you when facing a criminal charge this video will explain why it is critical to have legal representation in certain circumstances.

By Terry Gorry Google+

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