Employment law Flashcards
Explain a distoncition between an employee and an indepant contractor
an employee is liable for the actions of an employee , but genrally not for the actions of an independent contractor.
To impose liability the wrongful action of the employee must has arise in the course of their employment.
Independant contracts are responsible for their own actions.
Any negilgemce is. brpught against them not an employee
Employees are usually paid on PAYE basis and the employer is responsible for the deduction of tax and social insurance from employees gross pay
Where as the independent contractors are usually sel assessed for the purpose of income tax.
Describe the destiniction between an employee and independent contractor
Employment legisation defines an employee as an individual who has entered into work under a contract of employment.no statue defiition for independant contractor.
The contract that os entered into between an employer and employee is reffered to as a contract of ervuce.
Where as a contract entered between an employer and independant employer is reffered to as a contract of services.
EXAMPLE=AN TEACHER WHP TEACHES CHILDREN IN 6 CLASS IS AN EMPLOYEEMAS THEY WORK REGUALRY HOURS AND REGUARL WAGES
Where as if a pluber can into a school who is a sole trader they have come in to fix the canten ,they dont have fixed hours or waged.
Explain the 4 test
The courts have developed the folowing four testes ro determine if the individual is employed as an employee or an indecent contractor
The control test
The control test is a test used by the courts today to establish the amount an employer has over an worker.It exxamine whther the employer has control over their means,tools ,equipment,time date nad location and action of disissal.If these ocndition are prvoen by the court and the employer has more control over these than the employee than by law they are deem to be more an employee rather than an indepant contractor.
Explain of a control test case Roche V Kelly 1969
While a relationship between an employee and employer has many ingreients,it is umdoubly true the first principal is the determine one,it is fact the right of an employer to tell what has to be done nad how it is to be done
Explain the intergration test
This excesses the level of intergation of the worker into the organisation ,the more likey to be involved in the organisation the more liking an indivual is to be an employed. an judge explain it as part and parcel of the organisation ,the individual is held to work under a control of services.Where the employees work is part of the organisation ,than they an employee but if there work is part of the process and it outisde of the organisation,than they are an indeoendant contractor
Example of the intergration test case
Kelly V the irish press 1985
a jourlaist wrote a coloum for the ish press each week but how she didnt have editors edits of they paper she was deemed as indepednant contracto as the newspaper had ocntrol over the final edit.
Explain the term enterprise test
the entrerpirse test referes vto entrapreneurs ,they are deemed as independt contrator as they dont have any set hpurs o wages.They take the risk of their actions which the hopes of achiving an finaical gain.
Case which established the enterprise test is the Tierney V An post 2000
the planiff wasnt an employee of the organiation they were deemed to be an indepnadt contractor .The reason is becoaue he beered all the risk ratehr than the company.He invested his own mo ey and time into the organisation
Explain the economic reality test
most common test and used by the courts today to estalish whether the person is considered to be employed under the contrat of service.If they forfi.l the following they are considered to be an employee
The worker wokrs fro remunration
The worker is sujected t the employees to a suffiecient dgree
The provision is consistant with the contraol of service.
An example of The Econoic realift test -henry Dennis V the mijiste of soical welfare -1998
Individual was employed as a independant contractor, she shwoed food and let people taste the food.The busienss owenr had conrtol over location,time and equipment hnse why she was deemd as an employee rather than indepnat control .SH e had no contol over whether herr income increase or decreases.
How can you termination an employment contract ?
Performancee of the contract
Agreemnrt between two people
Frustrating events
Breach of Contract
Notice
Redunadacy
Dismissal
Explain the term Performance of contract
Perfornace of contract referes to the duties and responsiblies an employers is legally required to do.The means recieves remunuration for the work they have completed during this specific time period
Explain the term Agreement between the parties
This is where about the employee and employer both mutually agree to termination the ocntract of employee due to specific reason
Explain the term Breach of Contract
This is where one party or both parties breach the terms and conditions of the contract.they dont complete their duties to a stardadrd which they have to in order to ocmplete there job to a high standard.BREACK OF DUTIES OR MISCONDUCT.
Explain the term Notice
This is where the employee decided to hand in two weeks of notice before leavinf the company.The terms of emplyment act 1973 outlines the notice period of depending on how long you work there.
Explain the term Dismissal
This is where an employee is dismissal by their boss for misconduct or breach of duties .If an employee was unfairly dismiss from work they can make a claim to the workplace realtion commisssions court.
Explain the term dismissal
The term dismissal refers to the employee being due to breach of ocnduct or breack of duties.Can employee also bring a claim against their employer if they feel they have been unfairly dismissed by there employer.They claim is brought to the workplace relations commission.
Explain the term unfair dismissal
Unfair dismissal refers to en employee being dismissed for an unfair reason -under the unfair dismissal act 1977-2021.It is an employees right to know thta they will never be unfairly dismissed by an employer.they have the right to make a claim agianst the mployer is they are unfaily dismissed by employer.The claim will be brought to the workplace relation cvomission buy before the process starts they will have to prove thre were unfiarly dismissed.Unfiar disissal is consideration to take for of an employee beijg unfair disseed due to conduct of the employee it is also referred to as constructive dismissal
termination between the employer and employee with notice of dismissal.
The expirationf of the individuals cnotdaly for a specific time epriod.
Explain the first step involved in taking a claim to the work place relation commission.
the first stop involved in taking a claim to the workplace relation commission is o established whether the employee was actualy dismiss.Explain if an employee was tolded by their boss thta thye were sacked,they might have said it out of angry and employer doesnt actually mean it .This doesnt constitute an actually dismissal hence why they havent been unfailr dismiss and cant bright a claim to the work place relation commission.Tnner v T.D KEAN 1978 WHERE AN RMPLOYER TOLD AN EMPLOYE THAT THEY ARE DONE IWTH THEM AND THEY PRESEDE THEY WEERE DISMISSAL THE COURTS EVUALTED THIS AND BECUASE THEY CAME TO THE CONLUSION THAT THEB OSS SAID IT OUT ANGRY THAT IT DOENST CONSTITE AS AN UNFIAR DISMISSAL.
