Statutory Rights

Question 1

McDonnell v ESB

Answer 1

Claimant was held to be a part time worker - he worked 7 months full time and off for the remainder of the year - Labour Court ruled he was discriminated against him when he was not able to avail of the employee share ownership plan which required 12 months of continues service to avail of it

Question 2

Diageo v Rooney

Answer 2

Claimant was not paid on sick leave while comparable full time employees were - he was treated less favourably as a part time worker

Question 3

Boxmore Plastics v Roisin Curry

Answer 3

Overtime - she argued she should be entitled to it - employer said you need to work 40 hours just like the full time staff - employer was correct this was not unfavourable treatment

Question 4

Abbot Ireland Ltd v SIPTU

Answer 4

failure to pay PT workers midnight premiums where FT workers got it - was found to be less favourable treatment

Question 5

Department of Justice v Ennis

Answer 5

failure to pay PT workers travel allowances where FT received it - found to constitute to less favourable treatment

Question 6

Department of Education & Science v Gallagher

Answer 6

Claimant was job sharing and received €500 for supervision/substitution duties - full time teacher recieved €1000 - found to be treated less favourably

Question 7

Instituto Nazionale della Previdenza Social v Burno

Answer 7

Under the Act employees who work less then 0.2FTE can be treated less favourably with regard to pension - cabin crew were on reduced hours during certain periods - staff had to work longer to qualify equivalently for the pension - ECJ held that this rule was precluded by the directive

Question 8

CUS v Dooley

Answer 8

Labour court ruled that teachers not paid by the department were comparable to those who were - appealed on a point of law to the high court, overruled as they are not a comparator

Question 9

Hill & Stapleton’s v Revenue Commissioners

Answer 9

Financial cost does not constitute objective justification to justify paying PT employees a lower salary to FT

Question 10

Irish Rail v Stead

Answer 10

claimant was on a Fixed-term contract - he was not entitled to companys pension or GP medical scheme or development opportunities - company had no objective grounds

Question 11

Kenny v Cork coco

Answer 11

they abolished grade IV - created grade V red circled with new duties - they were treated in a less favourable manner with no objective justification

Question 12

Blka-Kaufhaus NB

Answer 12

3 tier test to determine an objective ground 1) Real need of the employer 2) Appropriate to meet the measure it pursues 3) necessary to achieve that objective

Question 13

St. Catherine College & Minister for Education v Maloney

Answer 13

permanent workers were given 6 weeks for every year of service - Fixed term workers were given 2 weeks for every year of service - employeer mistook its legal obligations and this was ruled unfair to fixed term workers

Question 14

HSE North Eastern Area v Khan

Answer 14

where an employeer fails to provide a fixed term employee with a statement in writing, and these grounds are subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the countrary

Question 15

HSE v Salaam

Answer 15

High court considered the LC decision in that case the specified purpose had not been stated before the second contract was entered into and the LC drew an interference that this reason was not in contemplation of the respondent at the material time

Question 16

Board of Management of St. Joseph’s School for Deaf Boys v Grehan

Answer 16

the claimant was a teacher employed on a series of fixed term contracts - he claimed to be entitled to a CID - school said he had been employed to replace another named teacher - respondent did not supply the claimant with the written contract and did not supply him with a written statement setting out the objective grounds for justifying the renewal of the fixed term contract

Question 17

NUIG v Morley

Answer 17

it was held that s13.1 did not take away from the general principle that an amployer is not obliged to renew a fixed term contract once it stays within the parameters of s.9 unless the reason for doing so is wholly or partially for the purpose of avoiding the fixed term contract becoming one of indefinate duration - court require evidence this is not the case

Question 18

Northern Area Health Board v Hughes

Answer 18

the rights commissioner rejected the claimants contention that she was entitled to a contract of indefinite duration in the job she half at the time her contract became one of indefinite duration - she started in 1999, was assigned Temporary manager post pending the filing of that post through competition - she was to revert to permanent post of manager - she claimed as she was entitled to a permanent post on the date she was in the temporary post she was entitled to this position - - it was held that the respondent was entitled to deploy the claimant to the post she had been offered

Question 19

Department of Foreign Affairs v A Group of Workers

Answer 19

LC rejected the argument that the renewal of the fixed term contracts was justified on objective grounds where the employer had argued it was necessary to deal with seasonal needs like the automated passport system and transfer of special work

Question 20

An Post v McNeill

Answer 20

Layoff is not merely one of temporal limitation

Question 21

Russell v Mount Temple Comprehensive School

Answer 21

claimant was employed on successive fixed term contracts from sept 02 to august 07 while someone was on career break - they applied for the permanent role and was unsuccessful - he claimed he was entitled to the post - LC ruled on the objective ground that when a role becomes redundant after the renewal this does not mean an employer is obliged to give a CID

Question 22

Ghulam v HSE

Answer 22

Claimant was on successive fixed term contracts from 1/11/01 to 26/03/06 - a permanent consultant had been appointed and claimant had argued he was entitled to that post - he succeeded in the claim €25,000

Question 23

Teagasc v SIPTU

Answer 23

LC refused to accept that a moratorium on recruitment constituted objective justification for the renewal of a fixed term contract and the claimant was successful in getting a CID

Question 24

Iarnrod Eireann v Higgins

Answer 24

claimants fixed term contract was justified since he had been engaged on capital projects which were limited in time and externally funded which funding was outside the control of the employer

Question 25

UCD v Doherty

Answer 25

Court held that the employer was justified in engaging the claimant on a fixed term post doctural research contract

Question 26

Commission v United Kingdom

Answer 26

Guidelines of a UK governmental department outlined that employers must make sure that workers can take their rest but are not required to make sure that they do take their rest

Question 27

Tribune Group v GPMU

Answer 27

LC held that there was a duty on the employer to ensure employees received rest periods - merely stating that employees could take rest periods while not putting in place proper procedures to ensure the employee received the breaks did not discharge the duty

Question 28

Gallagher v Alpha Catering Services Ltd.

Answer 28

UK Court of Appeal found against an employer who argued that downtime which the employees availed of in between loading food on to an aircraft constituted adequate rest break entitlements for the purposes of equivalent working time provisions

Question 29

UK v Council of EU

Answer 29

application by the UK for the annulment of the original Working Time Directive, the CJEU held that the provision of the Working Time Directive in relation to the presumption of Sunday as a rest day should be annulled as there was not sufficient evidence to connect a break on a Sunday with the health and safety of employees over and above a break on any other day of the week

Question 30

SIMAP

Answer 30

ECJ ruled that the term includes time spent on call by a doctor if the employees presence at their place of work is required during that time

Question 31

BECTU

Answer 31

all employees are entitled to paid holidays - ECJ held that in imposing a precondition for entitlement to paid AL the UK legislation negated an individual right granted by the Directive and was contrary to its objective

Question 32

JAC Security v Paul Fennell

Answer 32

Claimant received 20 days holidays on the basis of a 40 hour week - he worked an average of 60 hour week and therefore he argued he was entitled to an increased holiday allowance - LC upheld the Rights Commissioner determination to the effect the holidays had been calculated correctly on the basis of normal working hours excluding overtime

Question 33

FaserCourt v O’Brien

Answer 33

LC held that an employer was not permitted to pay a composite rate of pay to include holiday and public holiday pay - the obligation to pay holiday pay was not met by including an element in basic pay and any agreement to provide for same was void

Question 34

Sunday World v John Jenny

Answer 34

LC held that the employer was not in breach of its obligations under the Act as the union had agreed staff would be paid for working public holidays instead of TOIL

Question 35

Feeny v Baquiran

Answer 35

Claimant claimed she worked in excess of 48 hour weeks and did not receive holidays - employer did not keep any records - LC pointed to this and found that the respondent failed to prove that the Act was complied with

Question 36

Breffni Carpentry Services Ltd v Solodounikovs

Answer 36

In Irish case law concept of working time (time spent traveling) has been interpreted as if the exclusion provided in the National Minimum Wage Acts 2000 and 2015 - see TYCO decision 2015

Question 37

TYCO Decision - (Fedeacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL & Anor)

Answer 37

found that workers who were not assigned a fixed or habitual place of work, time spent travelling between their homes and the premises of first and last customers constituted working time for the purposes of the Directive

Question 38

Carey v Penn Racket Sports Limited - leading case

Answer 38

leading case on the subjective nature of a test - went all the way to the high court which ruled that it should have been viewed from the employees pov - employees child had a temperature and decided to stat at home for one day to mind her, it wasn’t serious for the child, but company decided not to pay her for it.

Question 39

Brazil v Dublin Bus

Answer 39

EAT held that an employee who provided reasonable proof under the guidelines for staff availing of Force Majeure leave qualification - Tribunal considered in the absence of a medical cert that a formalised statement from an employee may be acceptable as reasonable proof in the same was that statutory declarations are acceptable in commercial and legal processed

Question 40

Reardon v Global Shares Ltd

Answer 40

she was chartered accountant at a start up before going on maternity leave - approaching end of maternity leave she attended a meeting with the CEO at which she was being made redundant and a role of combing the finance and operations manager was being developed - she was given redundancy while on maternity leave - protective leave termination is void - €49,400 0.5 year salary issued to Reardon

Question 41

Paguay v Soci V’Arhictecds Hoet

Answer 41

any dismissal during pregnancy leave is void - ECJ suggested that the directive also outlawed the taking of any preparatory steps towards dismissal before the end of the maternity leave

Question 42

Cosgrove v Kellor Services Ltd - NB

Answer 42

EAT awarded €27,800 under the UD Act to a HR manager after she resigned due to her employers response to her pregnancy and its decision to move her to an entry level post within the group on her return from maternity leave - Tribunal upheld her constructive dismissal claim

Question 43

McGrath v Irish Distillers Ltd

Answer 43

Claimant did not return to the job she had immediately before maternity leave - Tribunal were satisfied it was not of equal statue. nature or extent and therefore did not comply with section 27. Re-instatement was not an option the claimant was awarded 20 weeks remuneration €17,000

Question 44

Mayr v Backerei und Konditorei Gerhard Flocker OHG

Answer 44

ECJ held that the dismissal of pregnant workers did not extend to a female worker undergoing IVF treatment - however court found that she was discriminated against under the Equal Treatment Directive