English

Employers: Get your free copy of "The 16 Common Employment Law Mistakes that Most Irish Employers Make" and my regular money saving employment law tips via email. Sign up below.

Instant access. We respect your privacy.

admin

This piece will give you some essential information about copyright law in Ireland, copyright infringement, what is copyright and so forth.

Infringement of copyright is common nowadays, particularly with the growth of publishing on the internet leading to image copyright breach amongst other common breaches.

copyright-infringement

What is copyright?

 

Copyright is the legal term, which describes the rights given to authors/creators of certain categories of work.

 

 

Copyright protection extends to the following works:

 

1.original literary, dramatic, musical or artistic works sound recordings, films,broadcasts, cable programmes

2.the typographical arrangement of published editions,computer programmes,

3.original databases.

 

The owner of copyright is the author and within the Copyright and Related Rights Act, 2000 the author has a very specific definition

 

21.—In this Act, “author” means the person who creates a work and includes:

(a) in the case of a sound recording, the producer;

(b) in the case of a film, the producer and the principal director;

(c) in the case of a broadcast, the person making the broadcast or in the case of a broadcast which relays another broadcast by reception and immediate retransmission, without alteration, the person making that other broadcast;

(d) in the case of a cable programme, the person providing the cable programme service in which the programme is included;

(e) in the case of a typographical arrangement of a published edition, the publisher;

(f) in the case of a work which is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken;

(g) in the case of an original database, the individual or group of individuals who made the database; and

(h) in the case of a photograph, the photographer

 

copyright-law

 

For example a photographer is the owner in the case of a photograph.

 

However, as copyright is a form of property, the right may be transferred to someone else, for example, to a publisher. Where an employee in the course of employment creates the work, the employer is the owner of the copyright in the work, unless an agreement to the contrary exists.

 

Copyright is a property right and the owner of the work can control the use of the work, subject to certain exceptions. The owner has the exclusive right to prohibit or authorise others to undertake the following:

 

1. copy the work

2. perform the work

3. make the work available to the public through broadcasting or recordings

4. make an adaptation of the work.

 

Copyright takes effect as soon as the work is put on paper, film, or other fixed medium such as CD-ROM, DVD, Internet, etc.

 

No protection is provided for ideas while the ideas are in a persons mind; copyright law protects the form of expression of ideas, not the ideas themselves.

Rights related to Copyright

Rights are not restricted just to the creators of the works themselves but certain other rights may apply.

 

For example, the record company has certain rights in a sound recording of the performance of a song, in addition the author(s) of the lyrics and the music will also have certain copyrights. Similarly performing artists have certain rights in their performances. The legislation also provides for moral rights, such as the right to be acknowledged as the author of a particular work and also the right to object to derogatory treatment of that work.

 

The primary legislation governing copyright in Ireland is the Copyright and Related Rights Act, 2000 (No. 28 of 2000)

 

Copyright Protection

 

In Ireland, there is no registration procedure for owners of a copyright work.

 

Basically the act of creating a work also creates the copyright, which then subsists in the physical expression of the work.

 

Copyrights are protected by law and illegal use of these rights can be contested in the Courts, the technical term for this misuse is infringement.

 

The legislation provides for criminal offences and consequently infringers could face both civil liability and criminal convictions.

 

Professional advice should be sought by copyright owners with regard to the options and the remedies available where infringement of their work occurs.

 

It is most important that the originator of a work can show subsequently when the work and the consequential copyright were created as it may be necessary to commence or defend infringement proceedings, at some later stage.

 

One way of doing this is to deposit a copy of the work with an acknowledged representative who may be a bank or solicitor in such a way as to allow the date and time of the deposit to be recorded or notarised.

copyright-protection

Alternatively, one may send a copy of the work to oneself by registered post (ensuring a clear date stamp on the envelope), retaining the original receipt of posting and leaving the envelope containing the copyright work unopened thus establishing that the work existed at that date and time.

The Copyright Notice and Symbol ©

It is important to show that copyright is claimed in a work. Works should be clearly marked to show who the copyright owner is and the date from which copyright is claimed.

 

The internationally recognised symbol © is normally used to indicate that a work is protected by copyright.

 

Example:

 

© Copyright Business and Legal 2009.

 

Examples of more detailed copyright notices may be found in published versions of literary works. The inclusion of a copyright notice does not legally constitute proof of ownership, but does indicate a claim to copyright, which may prove useful if it is necessary to defend that claim or to deter possible infringement.

 

It is usually necessary to obtain permission to use copyright material. Persons with a copy of a work can look for an indication on the work regarding copyright. This can assist making contact with the author/ original creator of the work in order to obtain their permission to use the work for any act, which is prohibited by copyright legislation.

 

Length of Copyright Protection

 

The duration of copyright protection varies according to the format of the work. In respect of the following works the term of protection is:

Literary, dramatic, musical and artistic works

Copyright protection expires 70 years after the death of the author/creator

 

Films

Copyright protection expires 70 years after the last of the following dies, the director, the author of the screenplay, the author of the dialogue of the film, or the author of the music composed for use in the film.

 

Sound recordings

Copyright protection expires 50 years after the sound recording is made or if it is made available to the public then 50 years from the date it was made available to the public.

 

Broadcasts

Copyright protection expires 50 years after the broadcast is first transmitted

 

The typographical arrangement of a published edition

Copyright protection expires 50 years after the date it is first made available to the public

 

Computer-generated works

Copyright protection expires 70 years after the date it is first made available to the public

 

Chapter 3 of the Copyright and Related Rights Act, 2000 (No. 28 of 2000) deals in greater detail with the duration of copyright in Ireland.

 

Benefits of Copyright Protection

 

Copyright protection provides a vital incentive for the creation of many intellectual works. Without copyright protection, it would be easy for others to exploit these works without paying any royalties or remuneration to the owner of the work. Copyright therefore encourages enterprise and creates a favourable climate to stimulate economic activity.

 

Copyright protection provides benefits in the form of economic rights which entitle the creators to control use of their literary and artistic material in a number of ways such as making copies, performing in public, broadcasting, use on-line, etc. and to obtain an appropriate economic reward. Creators can therefore be rewarded for their creativity and investment.

 

Copyright also gives moral rights to be identified as the creator or author of certain kinds of material (known as the paternity right), and object to the distortion and mutilation of it. An author’s right to object to the modification or derogatory action in relation to his or her work is known as an integrity right. Chapter 7 of the Copyright and Related Rights Act, 2000 (No. 28 of 2000) deals in greater detail with moral rights applicable in Ireland.

By Terry Gorry Google+

Franchising can be a great way to start your own business.And the failure rate for franchises is much less than for non franchise start-ups.

franchise-agreement

Franchise Opportunities

But you still need to do your homework and assess any franchise opportunities presented to you and ask and be satisfied about many questions which you might not think about in your enthusiasm to start your own business.

 

The franchise agreement from a major franchisor will generally be on a take it or leave it basis.

 

That is to say the franchise agreement will not be negotiable as the franchisor can’t afford to negotiate individual franchise agreements with each franchisee.

 

But that does not mean that you should not ask the right questions and satisfy yourself that the situation that arises when there is a dispute or the franchisee is incapacitated or dies is provided for.

 

Here are thirty questions you should ask and satisfy yourself about before signing a franchise agreement.

 

1. What law governs the franchise agreement?

 

Many successful franchises in Ireland are not Irish companies………..the law applicable for an international franchise may well be another jurisdiction.

 

2. What happens if the franchisee dies?

 

Is there provision in the franchise agreement for the franchisor to provide staff to run the business to keep the show on the road?

 

3. Is there a renewal option when the franchise agreement ends?

 

If there is are you happy to commit to sign a franchise agreement in say, 10 years time, having no opportunity to see the new agreement? What are the terms?

 

4. Can you sell the business? Can the franchisor veto your purchaser?

 

5. When the franchise agreement is terminated is there a non compete clause? For how long?

 

6. If the franchise agreement is terminated and the premises is yours, how much will it cost to debrand?

franchise-ireland

7. Is the training and system manual up to date? When was it last updated?

 

8. Is there an advertising fee payable? Can it be justified? Is there marketing spend on the brand?

 

9. Is there a management services fee? How is it calculated?

 

10. Does the franchisee have to inform the franchisor of any improvements he has made to the system?

 

11. Is the franchisor the owner of the trademark? And if not will he provide a licence to the franchisee for the use of any trademarks and intellectual property?

 

12. Who will own the premises? Will the franchisor provide any advice in relation to location and premises? Is this provided for in the franchise agreement?

 

13. How long has the franchisor been carrying on business? How many company owned outlets?

 

14. If the franchisor is supplying goods is there a credit limit? Will a minimum stock of products be imposed? Is a vehicle required? Will it have to be branded?

 

15. What books and records will the franchisee have to supply to franchisor?

 

16. Will a confidentiality agreement be required?

 

17. Who will pay for initial and ongoing training?

 

18. Is there a territory? Is it exclusive? Is it stipulated in the franchise agreement?

 

19. How long will the franchise agreement last? Is it compliant with competition law requirements?

 

20. Is training provided for staff? Is it ongoing?

 

21. Is more than 10% of the initial fee for use of the name and trademark? Can this be justified?

 

22. What initial stock will be needed? Will the franchisee have to purchase equipment, stationery from the franchisor?

franchise-opportunities

23. What ongoing obligations has the franchisor as per the franchise agreemtent in relation to problem solving, management, finance and marketing, provision of staff in an emergency, research and development and maintaining and improving the manual?

 

24. Will franchisee be required to advertise locally?

 

25. Does the franchisor have the right to communicate with the franchisee’s customers?

 

26. Has the franchisor the legal right to purchase the franchise from the franchisee? On what terms? Is that in the franchise agreement?

 

27. Is the franchisor entitled to appoint a manager if the franchisee dies or is incapacitated?

 

28. Who is entitled to terminate the franchise agreement? On what terms? What events will bring this about?

 

29. What will happen when a dispute arises? Is arbitration provided for in the franchise agreement? Litigation?

 

30. Does the franchisee have to enter into any restrictive covenants in the franchise agreement?

 

When looking at a franchise agreement with a view to buying either a new franchise or an existing franchise, a close perusal of the franchise agreement with these questions foremost in your mind is a good starting point.

 

But only a starting point. You will need to engage a solicitor before signing any franchise agreement but these questions may assist you in deciding whether to go that far or not.

By Terry Gorry Google+

The need for a written partnership agreement in any partnership is crucial.

Because if you do not have one, then the Partnership act 1890 will govern your relations with your partner.

partnership-law-ireland

Partnerships are an important part of business life in Ireland for a number of reasons.

 

1) any time 2 or more people come together to carry on business and do not form a company the law assumes they are in partnership.They are then subject to partnership law which dates back to the Partnership Act of 1890.

 

2) Professionals such as doctors,lawyers,dentists,vets,accountants are not allowed to form companies.

 

3) There are advantages over forming a company from the point of view of tax, accounting and disclosure requirements.

Unlike a company a partnership is not a separate legal identity which means that partners have unlimited liability, unlike directors or shareholders in companies.

 

And partnerships do not have to go through any registration process to be formed.

 

The downside is that each partner is liable for the losses of his co-partner in carrying on the partnership business, even where the other partner has defrauded clients of the business.

partnership-law-ireland1

What is a Partnership?

Partnership Act 1890 defines a partnership and essentially states that where 2 or more people carry on business with a common view of profit, then a partnership exists.

 

A written partnership agreement is not necessary.

 

And where 2 or more companies come together to carry on business to make a profit then unless they have set up a special purpose joint venture company a partnership will be deemed to exist.

 

However it is important to note that Co-ownership of property alone does not mean that a partnership exists; there must be a sharing of any profits between partners.

Generally the maximum number of partners allowed is 20;however there are exceptions made for solicitors and accountants.

Why is it important to have a written partnership agreement?

 

Because if there is not either an implied or express agreement the partnership will be considered in the eyes of the law a partnership at will and will be governed by an act from 1890….which in most cases is wholly inappropriate for modern business.

 

For example without a written partnership agreement the 1890 Partnership act will mean that

1)there is no right to expel a partner

2)any partner may dissolve the partnership

3)if a partner dies, the firm will automatically dissolve

4)there is no power to retire under the Partnership act.

 

These are pretty crucial reasons for partners to set down their agreement and understanding in a written partnership agreement.

By Terry Gorry Google+

The Trade Marks Act, 1996 defines a trade mark as “any sign capable of being represented graphically which is capable of distinguishing the goods or services of one undertaking from those of other undertakings”.

trademark-law

A trade mark is the means by which a business identifies its goods or services and distinguishes them from the goods and services supplied by other businesses and the registration of a trade mark is an important task for any small business owner.

A trade mark may consist of words, (including personal names), designs, logos, letters, numerals or the shape of goods or of their packaging, or of other signs or indications that are capable of distinguishing the goods or services of one undertaking from those of others.

 

Trade Mark Registration

 

Not all trade marks are capable of registration. Registration will be refused for a trade mark which:

  • is not capable of being represented graphically or not capable of distinguishing good or services of one business from those of other businesses,
  • does not have any distinctive character,
  • consists exclusively of signs or indications that designate essential characteristics of goods or services (e.g. their quality, intended purpose, geographical origin etc.),
  • consists exclusively of signs or indications which are customary in the language in the trade,
  • consists exclusively of the shape, arising from the goods themselves, or which is necessary to obtain a technical result, or gives substantial value to the goods,
  • is contrary to public policy or principles of morality,
  • is likely to deceive the public, e.g. as to the nature, quality, or geographical origin of the goods or services,
  • is applied for in bad faith,
  • is identical with or similar to a trade mark that is already on the Register in respect of identical or similar goods.

trade-mark-law-ireland

Trade mark registration creates an official record of your rights as owner of a particular trade mark and makes it easier to prevent others from using it.

 

Trade mark registration grants a statutory right, subject to certain conditions, to prevent others from using the trade mark without the registered proprietor’s permission – i.e. to prevent infringement.

 

Trade mark registration confers an exclusive right to authorise others by means of licensing to use the trade mark for the goods and /or services for which the trade mark is registered.

 

You should consider registering your trade mark if it is important to you that your customers are able to identify your products and services from those of your competition.

 

Unauthorised use of a trade mark means the rightful owner may lose business and goodwill.

 

Although trade mark registration is not obligatory, registration makes it easier to prevent others from benefiting from the reputation established by the use of a trade mark by allowing the proprietor of the registered trade mark to take infringement proceedings before the court.

 

The fraudulent application or use of a trade mark in relation to goods without the authorisation of the proprietor and/or the possession of goods or material bearing a mark identical to or nearly resembling a registered trade mark, may in certain circumstances, be a criminal offence, and criminal proceedings may be initiated under the Trade Marks Act, 1996.

Unregistered Trade Marks

If you use a particular brand for some period of time then you may have an unregistered trade mark. If someone infringes your brand or trade mark you will still have legal recourse to protect your trade mark.

 

However this will involve commencing legal proceedings under the common law heading of “passing off” and the onus of proof will be upon you to establish proof of your ownership of the unregistered trade mark. This can be costly and time consuming and you will not enjoy the protection of registration and the remedies provided by the Trade Marks Act, 1996.

trade-mark-registration

Benefits of Trade Mark Registration

The principal benefits of trade mark registration are

  1. Without registration you can only rely on a legal action for “passing off” to protect your rights
  2. Registration will help protect your business identity and goodwill
  3. It is proof of your ownership of the intellectual property rights of the trade mark
  4. Protection against other businesses whose products/services are defective who trade in the industry
  5. Protection against others using similar trade marks.

 

Types of Trade Mark

Ordinary or standard trade mark

The majority of all trade marks fall into this category. They consist of words, slogans, logos, etc. whose purpose is to distinguish the goods and services of their proprietors from those of other undertakings.

 

Collective mark

A Collective trade Mark is a mark that distinguishes the goods or services of the members of an association from those of others.

 

Certification mark

A Certification trade Mark is a mark that “certifies” goods or services as being of a certain standard or possessing certain qualities or other characteristics.

 

A certification mark can only be registered in the name of the proprietors if they themselves do not produce or provide the goods or services to which the mark is applied.

 

Series of trade marks

A series of trade marks is a number of marks, which resemble each other in their important features and differ only in respect of non-distinctive elements that do not substantially affect their identity.

 

Three-dimensional mark

A three-dimensional trade mark is a trade mark that consists of the shape of a product or its packaging.

Application for a Trade Mark(trade mark registration)

Any person or company etc who uses or proposes to use a trade Mark can apply to register that trade mark.

 

An application may be made either before the trade mark is put in use or afterwards. Generally speaking an application should be made to register a trade mark as soon as possible to ensure priority over anyone else who applies to register the same or similar mark.

 

To apply, complete the application form 1 on Patents Office website. The fee for filing an application may be paid at this time or within one month of that date.

 

An applicant may pursue his or her application personally or choose to employ the services of a registered Trade Mark Agent or solicitor.

 

If an application meets the criteria for registration, it is registered with effect from the date of application.

The Application Process

When an application (which contains the minimum information required) is received, a filing date and application number is assigned and a filing receipt is issued.

 

The Minimum requirements for a filing date are –

 

  • A request to register the Mark (completion of the prescribed application form meets this requirement),
  • The name and address of the person requesting the registration,
  • A representation of the trade mark,
  • A statement or list of the goods and/or services for which registration of the trade mark is sought.

 

The application is then examined as to its registrability. The examination process includes a search of relevant databases to ascertain whether the trade mark or a similar mark has previously been registered. If this is found to be the case, then the Office may refuse to register the trade mark.

 

The examination also addresses other obstacles to trade mark registration such as, for example, whether the mark is simply a laudatory statement of a product’s quality (e.g. “Best Quality”) or a sign that has become generic within a particular field of commercial activity. These are among a number of grounds on which an application for registration may be refused.

 

If it is proposed to refuse registration in a given case, the Applicant will be informed of the reasons why and will be afforded an opportunity to make arguments in support of the application. Before any decision to refuse becomes final, the Applicant will have a right to attend an oral hearing before a senior official of the Patents Office.

 

If the application is accepted for registration, details of the mark will be published in the Official Journal. Within 3 months of the advertisement of a trade mark, any person who objects to its registration may send a notice of opposition to the Office accompanied by the prescribed fee and the Office will copy this to the Applicant.

 

Each side (the Applicant and the Opponent) is then given an opportunity to file evidence in support of its case and the question of whether the mark should be registered is ultimately decided by a senior official of the Office.

Length of time

A trade mark registration can last indefinitely provided the registration is renewed. Registration is initially for a period of ten years (from the date of filing of the application) and it can subsequently be renewed every ten years on payment of the renewal fee.

 

If you need a trademark registered of if you are the victim of infringement of your trade mark please use the contact form to contact Solictitors Dublin.

By Terry Gorry Google+

The Civil Summons procedure is the method of issuing legal proceedings in the District Court.

The District Court deals with claims with a value up to €6,348.69 (IR£5,000) and many people in Ireland will have been served with, or served, a Civil Summons in the last 18 months to pursue a debt.

civil-summons-procedure-ireland

Debt collection in Ireland has become increasingly active and pressurized in the last two years and an understanding of how to collect a debt or how to defend such an action is important to avoid having a judgment granted against you.

 

If you want to pursue a debt for less than €6,348.69 you can issue and serve a Civil Summons in your District Court area or in the District Court area of your debtor. Issuing a Civil summons in Dublin is slightly different than outside of Dublin.

Issuing a Civil Summons

To issue a Civil Summons in Dublin you simply bring your Summons along to the District Court office in the Four Courts. You will need two copies and one will need to be stamped with stamp duty of €20.

district-court-civil-summons

The District Court office will stamp your summons with a date. This date is called the return date which simply means that you appear in court on that date and will be given a date for the hearing of your claim.

Service of a Civil Summons

It is necessary though to firstly serve the Summons on your Debtor and you do this by serving a copy of the Civil Summons on them.

 

Service of any summons or legal document is determined by the rules of the various courts. Generally if you are suing a company you serve on the registered office of the company by ordinary post.

 

Service on an individual can be carried out by registered post or by personal service.

 

All of the rules in relation to service of legal papers and precedents for drafting your legal papers, such as your Civil Summons, can be found on the courts website at http://www.courts.ie

 

Once you have served your summons the debtor must file a Notice of Intention to Defend the proceedings in the office of the District Court. Once they do this your case will appear in the Court’s list on the return date and will be given a hearing or trial date.

 

If no Notice of Intention to Defend is filed by your debtor then you will be free to obtain a judgment against your debtor without any further court appearance.

 

If this is the case then one you get your Judgment or Summary Decree you send it to the Sheriff of the District court area for him/her to try to recover the value of your Summons.

 

Clearly if you are the recipient of a Civil Summons for A Debt then you should either make sure to fill out the Notice of Intention to Defend form and give it back into the District Court office and a copy to the person who is suing you (or their solicitor).

 

If you are not comfortable doing this yourself then you should call to a solicitor who will look after it for you.

 

But however you decide to act, do not bury your head in the sand if you are served with a Civil Summons or you run the risk of having Judgment granted against you in your absence.

By Terry Gorry Google+

Are you worried about redundancy and redundancy entitlements in Ireland?

Do you need to access a redundancy calculator to check what you can expect?

redundancy-calculator

Hopefully this comprehensive article will help give you a good, sound understanding of redundancy in Ireland, redundancy payments, notice periods and your employment rights in Ireland.

Non-collective redundancies in Ireland

An employer’s obligations in redundancy situations will depend on whether a collective redundancy is proposed or it is a “normal” redundancy in a small business in Ireland. The focus of this piece is non-collective redundancies; in collective redundancies there will be additional requirements on the employer imposed by the Protection of Employment Acts 1977 to 2007 and various regulations and other legislation.

In non-collective redundancies in Ireland there are no specific procedural requirements set out to carry out a redundancy dismissal.

What the employer must be very aware of though is the Unfair Dismissals (Amendment) Act, 1993 as this act holds that if the conduct of the employer is unreasonable in carrying out a redundancy then it may amount to unfair dismissal.

So it is vital that the employer act reasonably in carrying out a redundancy and a principal factor in how reasonable the behaviour was will be how the employer selected the employee(s) for redundancy and whether there were other alternatives to redundancy such as alternative employment or some other type of work in the employer’s business.

From an employer’s perspective it is important to be able to point to the reasonableness of his conduct when faced with the necessity for redundancy.

Even though it is not a procedural requirement from a legal perspective it is good practice for the employer to hold meetings and discussions to explore any alternatives and it would be prudent for the employer to make a record of these discussions and proposals

The ability of the employer to be able to point to a paper trail of how the decision to carry out redundancies was arrived at can prove invaluable at a later date, for example at an EAT or Rights Commissioner hearing.

redundancy-entitlements

The key point for an employer is to be able to demonstrate that people were selected fairly for necessary redundancies and that the employer acted reasonably at all stages of the process.

The selection of employees for redundancy has led to many employers paying quite a high price at a later date before the Employment Appeals Tribunal and unfortunately there are no criteria laid down in legislation for the selection of employees.

Some factors to be considered by the employer should include

  • Attendance record
  • Ability
  • Disciplinary record
  • Skill level

Many employers employ a policy of “last in, first out”. If there is a procedure in place in the workplace to deal with redundancy, as there is with most unionised workplaces, the employer will have to be able to show that the procedure was used to select each employee made redundant.

Nevertheless, no matter what criteria are used, the employer may well have to stand over his/her selection procedures at a later date and being able to objectively justify his choice will be his best defence.

It is worth noting also that the idea of “impersonality” should run through any redundancy decision-this means that the person is not redundant but it is actually the job that is deemed to be redundant-this may be due to change in the workplace or a downturn in business.

redundancy-ireland

Redundancy Calculator Ireland

Calculating your redundancy entitlements is pretty straightforward with the redundancy calculator provided online by the Department of Social Protection.(See link at the end of this article)

What is redundancy?

The legal definition of redundancy in Ireland is set out in the Redundancy Payments Act 1967 and amended by the Redundancy Payments Act 1971 and 2003-

an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

 

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

 

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

 

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Key factors in redundancy

There are two critical factors to be gleaned from this definition-

The redundancy should arise from the doing away with the job, not the person. This feature of impersonality is necessary in a genuine redundancy situation.

redundancy-payments

Change-the change must arise as a result of change in the workplace which might range from a closing down of the business to a simple reduction in number of employees.

Redundancy entitlements

To be entitled to a redundancy payment you must have the requisite period of service served which is:

104 weeks of continuous employment attained after the age of 16 years.

To be entitled to redundancy you will need to have been dismissed from your job; if you are given a new contract of employment or your old contract is renewed you will not be entitled to redundancy.

Short time/lay offs

You can be placed on short time or laid off where the employer is unable to provide work but only where the employer reasonably believes that the lay off will not be permanent.

The employer is generally obliged to pay the employed during this time although there are exceptions to this general rule depending on custom and practice in specific situations.

Redundancy payments

Redundancy payment entitlements are calculated by reference to weeks per year of service and is basically calculated as follows:

  • 2 weeks’ pay for each year of continuous employment over the age of 16 years
  • An additional one week’s normal earnings.

All earnings over €600 per week are disregarded though in calculating statutory redundancy payments and redundancy payments are tax free.

(Continuous employment is not broken by layoffs, holidays or sickness.)

Redundancy calculator

You can access a redundancy calculator on the website of the Department of Social Protection to calculate your redundancy entitlements. Click here to go to calculator.

See also solicitors Dublin if you have any queries arising from this article.

By Terry Gorry Google+

As there is no agreement in place between the United States and Ireland for the automatic recognition and enforcement of Judgments obtained from a court in the US in Ireland, it will be necessary to rely on common law rules.

This can lead to difficulties of enforcement of judgments obtained outside Ireland..

us-court-judgments-in-ireland

In fact, there is no bilateral treaty or multilateral international convention in force between the United States of America and any other country on a reciprocal recognition and enforcement of judgments.

 

The Irish common law rules/principles are quite restrictive and enforcing non-EU judgments in Ireland can be problematic as a consequence.

 

Common law principles

 

The common law principles that the Irish Courts will rely on are

  1. The US judgment must be for a liquidated sum, that is a definite monetary value
  2. The US judgment must be final and conclusive
  3. The US judgment must be granted in a Court of competent jurisdiction.

 

Number 1 above is obvious-you either have a judgment for a definite sum or not.

 

Likewise with number 2-the legal proceedings must have come to an end with no opportunity to appeal the judgment and the judgment must have been achieved following the correct procedures in the state in the US which granted the Judgment.

non-eu-judgments-in-ireland

 Court of competent jurisdiction

Number 3 above can be the most problematic as a result of a case called Rainford v Newell Roberts [1962] IR 95 where a Judgment was obtained by Rainford in the UK and sought to enforce the judgment in Ireland. (This situation would not arise now as a result of both countries mutual recognition of judgments due to various EU law and international conventions but is illustrative of the common law principles involved in seeking to have the US judgment enforced here)

 

This problem centres primarily on the question of proper service of the proceedings on the Defendant, as accepted by Irish rules of private international law.

 

In Rainford v Newell-Roberts the defendant had not been in the UK when served with the legal proceedings and had therefore not submitted to the jurisdiction of the English Courts and as a consequence the Irish Courts did not allow enforcement of the Judgment.

 

Where the dispute or Judgment arises as a result of breach of contract and the contract provides that a foreign jurisdiction will have exclusive jurisdiction in the event of a dispute the Irish Courts would be very likely to stay any proceedings instituted in Ireland and recognise the exclusive jurisdiction clause in the contract.

non-eu-judgments-in-ireland1

Grounds on which Judgment will be refused

In addition to the above considerations and criteria the Irish Courts will refuse to grant Judgment in Ireland where

  1. The Judgment would violate Irish public policy
  2. The foreign judgment was obtained by fraud
  3. The foreign judgment is in breach of natural justice
  4. The foreign judgment cannot be reconciled with an earlier foreign judgment.

Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12

This 2012 decision of the Supreme Court in Ireland is instructive and helpful.

In Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12 the Supreme Court was invited to accept the appropriate basis upon which the common law in this jurisdiction should recognise an in personam order of a foreign court. Flightlease argued that the traditional test as set out in Dicey (and in particular Rule 36) represents the current law in this jurisdiction. Swissair contended that the courts in this jurisdiction should follow the lead of Canadian courts and adopt a ‘real and substantive connection’ test.

(Read the full decision in this case here)

According to Rule 36 of Dicey if a judgment debtor was, at the time the proceedings were instituted present in a foreign country or if the judgment debtor submitted to the jurisdiction of the courts of the foreign country the Irish courts would recognise and enforce a judgment of a court of that country. (Dicey, Morris & Collins on Conflicts of Laws 14th edition (“Dicey”))

 

“Rule 36. Subject to rules 37 to 39, a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition in the following cases:

 

First case. If the judgment debtor was, at the time the proceedings were instituted, present in the foreign country.

 

Second case. If the judgment debtor was claimant, or counterclaimed in the proceedings in the foreign court.

 

Third case. If the judgment debtor, being a defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings.

 

Fourth case. If the judgment debtor being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings to submit to the jurisdiction of that court or of the courts of that country.”

 

The Supreme Court decided that to follow the lead of the Supreme Court in Canada would lead to the Supreme Court in Ireland exceeding it’s judicial function and that the correct position is as set out by Rule 36 in Dicey outlined above.

You can learn more about debt collection in Ireland for international clients or contact us directly through our contact page.

By Terry Gorry Google+

The two most common drink driving offences in Ireland are section 49 of the Road Traffic Act, 1961 (commonly known as “drunken driving”) and  section 50 of the same act, commonly known as “drunk in charge”.

Drunk in charge-section 50

To be successfully prosecuted for the offence of being “drunk in charge” under Section 50 of the Road Traffic Act, 1961) it is necessary to prove

  1. The offence occurred in a public place
  2. That the accused person intended to drive or intended to attempt to drive the car
  3. That the accused person was in charge of the vehicle.

drunk-in-charge

There is a presumption in law that the accused person intended to drive or intended to attempt to drive the vehicle; it is up to the accused person to prove to the contrary.

Whether the accused person was attempting to drive in the eyes of the law will depend on the facts of each case but there is an important Supreme Court case, DPP v Byrne (2001, unreported) where the accused person was held to be in charge with intent to drive under section 50.

In this case the accused

  • Was in the driver’s seat
  • Was actually asleep
  • Was pulled in to the hard shoulder
  • The keys were in the ignition, turned two clicks.

As in the previous offense of “drunken driving” the Garda can only arrest you after he has “formed the opinion” that you are committing or about to commit an offense under section 50. The Garda does not have a general power of arrest.

It is worth noting that to prove a section 50 offence the Garda will not have to prove that you were driving, only that you were in charge of the vehicle and that you intended to drive the car or intended to attempt to drive.

drink-driving-ireland

The concentration of alcohol required to prove this offence is an excess of alcohol in the blood of 80 milligrammes of alcohol to 100 millilitres of blood. There are other tests in relation to testing breath (35 microgrammes of alcohol per 100 millilitres of breath) and urine (107 microgrammes of alcohol per 100 millilitres of breath).

The sample must be taken within 3 hours of the alleged commission of the offence.

Lawful arrest under section 49 and 50, Road Traffic Act, 1961

It is important to note that the opinion of the Garda in order to arrest you lawfully must be a reasonable one and must be formed after ascertaining and considering the facts.

For the arrest to be lawful, there are 2 factors required:

1.       The driver must be informed why he is being arrested in plain language

2.      The driver must be informed that he is no longer at liberty.

Other important facts about drunk in charge

You cannot be given section 1(1) of the Probation Act, 1907. The penalties on conviction for section 50 are a fine of up to €5,000 and/or 6 months in prison.

Since October, 2011 the disqualification periods for “drink driving” offences has changed and will depend on whether you are an experienced driver or not and the level of alcohol you have in your system.

Contact a solicitor if you have been charged with either section 49 or 50 of the Road Traffic Act, 1961 as these are serious offences which can have long term consequences in many aspects of your life including from an employment and insurance perspective.

Learn about other road traffic offences. If you need a solicitor in Dublin please use the contact form on this site.

By Terry Gorry Google+

If you have secured a judgment in the UK in respect of a debt but find that your debtor is now living in Ireland, how do you enforce your debt?

enforce-uk-judgments-in-ireland

Article 33 of the Brussels I regulation stipulates that any judgment obtained in a member state will be recognised in other member states without any special procedure required.

But how do you enforce your UK judgment in Ireland?

Order 42A of the Rules of the Superior Courts in Ireland provides the procedure which involves making an application to the Master of the High Court in the first instance.

(Solicitors Dublin would be happy to answer any of your questions arising from this article or to assist you with enforcing a UK judgment in Ireland)

This is an ex parte application (only one party required, there is no need to serve any papers on the debtor at this stage). Your application needs to be supported by an affidavit which shows

  1. Your UK judgment,
  2. If the judgment in the UK was obtained by default you will need to demonstrate that the debtor was properly served in the UK with the legal proceedings in the first place,
  3. Documents that show that the judgment obtained in the UK is enforceable and has been served,
  4. An Annex V certificate which will be provided by Court officials in the UK.

There are a number of other averments or statements which will need to be in your affidavit including an address in Ireland for the service of documents on the party making the application and the grounds on which the right to enforce the judgment is vested in the party making the application.

enforce-uk-judgments-in-ireland1

Declaration of enforceability

Provided your papers are in order and your application is successful then the Master of the High Court will declare your UK judgement enforceable immediately.

Once this declaration of enforceability is granted it affords the same power to the UK judgment as if it was a judgment made in the High Court in Ireland.

This declaration of enforceability then needs to be served on the debtor along with the Judgment and a Notice of Enforcement.

At this stage the debtor has a period of time within which to appeal the Master’s order which can range from 1 month to 2 months.

Only after this period has expired will the Execution Order in respect of your Judgment issue.

 

UK Judgment not recognised

A UK or EU judgment will not be recognised in Ireland in only a narrow range of circumstances with the most common situation being where the original proceedings were not correctly served on the debtor.

 

Should you need any assistance in Ireland with having your UK judgment recognised and enforced in Ireland we are happy to assist-please use the Contact Us form with your query.

By Terry Gorry Google+

The huge growth in use of the internet in the last few years has thrown up many issues which should be of concern to website owners and in particular small business owners who market their business online.

There are a wide range of areas in which you can fall foul in your promotion of your business on the internet.

illegal-use-of-the-internet

The potential areas of concern for website owners are extensive and include

  • Direct marketing and email marketing
  • Electronic commerce
  • Defamation
  • Copyright infringement
  • Trade mark infringement
  • Domain name disputes
  • Selling online and European Communities directives and regulations
  • Child pornography
  • Liability of internet service providers
  • Employees use of the internet in the workplace
  • Data protection

Three of the most common and serious areas of potential legal difficulty for website owners, individuals and small businesses include

  • Criminal behaviour on the internet
  • Intellectual property rights infringement
  • Infringement of the privacy rights of individuals.

Some of the most common activities on the internet which are or may be illegal (depending on jurisdiction) include hacking, framing, deep linking, harvesting and infringement of trade mark through the use of meta tags.

illegal-use-of-the-internet1

Hacking

Hacking broadly breaking into another’s computer or websites to steal information or cause damage. Whilst it can be difficult to prosecute in Ireland the Criminal Damage Act, 1991 contains a number of provisions to combat hackers.

Sections 2(1), 2(2), 3, 4 and 5(1) criminalises

  • Damage to property with property including “data” and damage including erasing, corrupting and altering data;
  • Threat to damage property even if the attempt to damage is unsuccessful;
  • Possession of anything with the intent to use it to damage property;
  • Unauthorised access with the intent to access “any data”.

 

The Data Protection Acts criminalizes unauthorised access to personal data.

Unlawful use of a computer is criminalized by the section 9(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and other illegal behaviour on the internet is covered by the Copyright and Related Rights Act, 2000 and the Electronic Commerce Act, 2000.

 

Harvesting

Harvesting is the activity of the collection of email addresses for spamming purposes and taking of information from databases of third parties without the latter’s consent.

Harvesting is criminalized by the Data Protection Acts 1998 and 2003 and possibly also by the Criminal Damage Act, 1991 and the Copyright and Related Rights Act, 2000.

Deep Linking

Deep linking to other websites can be unlawful in certain circumstances where those links infringe the rights of the owner of the website to which the link goes. (See Shetland Times Limited v Dr. Johnathan Willis [1997])

It is also possible that a simple link to another website which contains a registered trade mark term can be a breach of the intellectual property rights of the site to which you link. Playboy (www.playboy.com) in the United States won a case in relation to this activity when it discovered a pornographic site linking to it with it’s trade mark term.

Framing

Framing, which is the division of a website into “frames” where a website’s text is displayed next to linked third party material in the same window may be a breach of copyright law.

Meta tag trade mark infringement

Many cases in the United States have been taken successfully where a website owner sues a competitor for the use of a trade mark term as a meta tag in the competitors website, even though such meta tags may not be visible to surfers or visitors to the site.

Conclusion

Clearly there are many potential infringements in the area of internet law with remedies provided for in the statute books. It is an area where you would be well advised to assess your current engagement on the internet to ensure you or your business is not storing up problems for the future.

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.
member-of-the-law-society