Employment law Questions

Employment LawNermin Sido
QQI
6N4322
Employment law
Assessment Brief 1 – 30%
Class:
BHR6
Date handed out: 17/11/21
Tutor: Joan Kelly
Submission date: 10/12/21
Scenario
You are an intern in HR FIRST LTD a firm which provides HR Services to
companies.
The firm has recently been hired by First Medical Group to handle their HR issues.
You have been asked by your supervisor to prepare advices addressing the tasks
below in relation to two situations that First Medical Group is facing:
1. Alex the Manager of First Medical Group (A GP Practice) called an employee
(Brendan) into the office yesterday and told him he was dismissed and would not
be returning to work at the practice again. The manager said the practice was not
happy with the way Brendan deals with clients. He said it was reported to him by
another worker that Brendan had been seen on several occasions being
disrespectful with clients and had even been seen shouting and being aggressive
with clients. Brendan asked the manager (Alex) who the other member of staff is
and when he was supposed to have done this, the manager refused to give him
any more details. Brendan was adamant that he has never dealt with any client in
a disrespectful way and said to Alex “the truth is you are getting rid of me as I am
the Trade Union Rep”. Brendan has threatened to take a case against the practice
for unfair dismissal. Alex is of the view that Brendan, who is not a full-time
employee, merely works on a contract for service and the practice is thus fine.
Brendan has worked for 5 years for the practice. He is a qualified Nurse. His
contract states that he is an independent contractor and is responsible for his own
tax. He is paid €300 per day on foot of monthly invoices, no deductions are made
for tax or PRSI and his pay does not change depending on the number of clients
he sees. He is paid for public holidays but does not get any holiday pay if he takes
leave and has not been given access to First Medical Group’s Pension Scheme.
(He is not happy with no holiday pay or pension). He works from 9 to 4 Monday
to Wednesday. He is handed a list of appointments each day and told which
patient to see when and what is required in relation to each patient e.g., take
bloods, change dressings etc. The practice provides the equipment, and he is not
charged for using it. He is not allowed to send in anyone else to do the work for
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him. Brendan attends the monthly practice meeting which is the 3rd Friday of
each month. He attends all social functions connected with the practice and the
practice has always contributed 50% towards the cost of any additional training
or education that he has undertaken since he has worked for them.
2 Alex is about to hire Mary to replace one of the practice receptionists while she is
on maternity leave.
Tasks
In respect of the first situation
(I)Outline the tests used by the Courts to determine whether someone is under a
contract of service (an employee) or under a contract for service (a contractor)
(refer to caselaw in your answer)
(ii)Assess the facts of Brendan’s situation and evaluate whether he is an
employee or an independent contractor explaining your answer.
(iii) Evaluate whether Brendan (if an employee) would have a case under unfair
dismissals legislation (Refer to case law and Statute in your answer) and if so
assess what remedies he might obtain and where he would go to obtain them
including any possible appeals.
(iv) Explain the elements of a HR Grievance and Disciplinary Procedure in line
with the LRC 1990 code of practice and contrast with the procedures used in
Brendan’s case such that Alex can appreciate the legal significance of HR
grievance and disciplinary policies and procedures as a dispute resolution
strategy.
(v) Evaluate whether Brendan may have a claim for Holiday pay under the
Payment of Wages Act 1991 and/or the Organisation of Working Time Act 1997
as amended. If so, where does he take that claim and what redress can he obtain?
(vi) Evaluate whether First Medical Group would be required to provide Brendan
with access to First Medical Group’s Occupational Pension Scheme if he was
deemed an employee.
(vii) Evaluate whether being part time as opposed to full time would affect any
claim under the Unfair Dismissals Acts 1977-2015 or for holiday pay or access to
the pension scheme.
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(viii) Evaluate what notice period Brendan would have been entitled to under the
Minimum Notice and Terms of Employment Acts, 1973-2001 in respect of
dismissal, if an employee.
(ix) Evaluate in what circumstances Alex could have made Brendan redundant
and if so, what would Brendan have been entitled to.
In respect of the second situation i.e., Alex hiring Mary to replace his receptionist
while she is on maternity leave
(x) Advise Alex what needs to be in the five day and two-month statement of
terms and what is required in order to prevent termination of the contract at the
end of the maternity leave being grounds for Unfair Dismissal.
Submission guidelines
The information is be presented in the form of an essay using Font 12 Times New
Roman, 1.5 line spacing and referenced as per the Harvard System with use of a
Bibliography and case law referenced by Name and Year
Submission is through moodle on or before the submission date.
Marking Scheme
Criteria
Relevant information appropriately
presented
Understanding and knowledge of
chosen topic clearly demonstrated
and a comprehensive evaluation
presented
Legal Principles appropriately
applied, and relevant case law and/or
examples included
.
Total
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Marks
10
10
10
30
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