Reference no: EM133200596

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:

Question 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 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.

Question 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.

(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.