RECENT cases adjudicated at the Workplace Relations Commission (WRC) involving a racing stable and stud farm have drawn attention to the nature of the employment relationship between employers and employees in the racing and breeding industry.

In the case of the racing stable, a very significant award was made to a former employee amounting to a total of €85,080.

In terms of the context of this award, a number of observations are notable. Firstly, the awards were made under five separate pieces of employment legislation, those being the Unfair Dismissals Act (€14,280), the Minimum Notice Act (€1,142), the Terms of Employment – Information Act (€2,285), the Minimum Wage Act (€21,373) and by far the largest award was under the Organisation of Working Time Act (€46,000).

The employee loss under the Organisation of Working Time Act in relative terms was just €1,306, with the rest being total compensation under various sections amounting to €44,694.

Another unfortunate circumstance for the employer in this case was he failed to show for the WRC hearing, despite making a late effort to have the case postponed and then left his appeal against the WRC awards too late by missing the 42-day appeal deadline. In short, because of all of this the claimant got an uncontested free run.

In terms of the case involving the stud farm, it was reported that a total award of €18,000 was awarded to two staff members who the WRC found were unfairly dismissed following an alleged “verbal altercation” with a manager resulting in “loud and angry use of swear words, disrespectful comments and allegations of gross incompetence directed at the manager”.

The company submitted in response to both workers’ cases that dismissal was appropriate in the circumstances and the matter had been independently investigated by an external HR professional. However, the employer acknowledged that the organisation’s own disciplinary procedures were not followed.

In terms of the joint total awards, it again is significant that these included findings against the employer under the Terms of Employment – Information Act and the old chestnut of the Organisation of Working Time Act.

As an employer how can I best avoid this happening to me?

In the first instance get the basics right.

1. Terms of employment

Ensure you have “Statements of Employment” for all your employees in place (usually referred to as contracts of employment). In terms of statutory compliance, these do not need to be legalistic or complex. They just need to cover the basic employment headings referred to in the Act. In the context of a WRC inspection the statutory Statements of Employment are amongst the first things requested to be seen by the inspector, so they are really important to have in place.

2. Working time records

Make sure your employees’ working time is recorded on a time sheet or suitable electronic method, for each day usually over the course of a week. The timesheet should be signed off by the employee and employer.

These records are most important, both in the context of a WRC inspection or in the event of a dispute with an employee or former employee.

It’s worth noting that, from my experience, the majority of unfair dismissal cases have alleged breaches of the Organisation of Working Time Act thrown in for good measure. If you haven’t the records, you’re in trouble.

It is also worth mentioning that, in the not too distant past, the WRC Inspectorate were focused on the thoroughbred racing and breeding industry with principle attention given to employee working hours and, in particular, weekly rest periods.

The main issue of non-compliance related to a long-standing practice of what has been referred to as the ‘Newmarket Roster’. This effectively was a standard work roster for racing stable and stud farm employees that the industry found difficult, if not impossible, to repeal. It involves one Sunday off over a 14-day period.

The industry’s battle to keep this practice has been long lost to legislation and so its continued application is a serious breach of Section 13 of the Act. This alone cost the employer in the first case above €15,000 for just one employee. The advice would be if you still have this practice STOP, even if your employees have no issue with it.

The working time legislation also covers daily work breaks, as well as time off from the end of one day to the commencement of the next (minimum 11 hours).

One should be conscious of this, for example if you have a staff member on duty for a late race at Dundalk and your yard is south of the Curragh. Make sure your employee’s starting time the next day is at least 11 hours after returning. Annual leave (minimum 20 days) and public holiday provisions are also included under the organisation of working time legislation.

3. Work permits

In cases whereby employees from outside the EU are employed make absolutely sure that the appropriate Department of Enterprise general work permits are in place for each employee and the details for the permit are consistent with the employment – hours of work, et cetera.

4. Disciplinary process

Have disciplinary procedures and employee grievance procedures in place. The likelihood is these will never be required, but in the event of a disciplinary or grievance issue they are worth their weight in gold. Both of these policies should be attached to the employee Statement of Employment (contract) and signed for by the employee confirming receipt. Again, it is well worth noting that, in relation to a WRC inspection, these policies are requested for inspection. They are also critical to an employer’s defence in the context of a future claim for unfair dismissal.

5. Wage rates

Ensure you have a clearly defined pay reference period as required by the National Minimum Wage Act (how the pay rate is determined – in this case, hourly) and ensure the rate is at least €13.50 (hourly minimum wage January 2025).

If your employee works on Sunday then a premium for Sunday working must apply, in keeping with the organisation of working time legislation. Sunday premium levels are not referenced in the Act but should be at least 20% above the usual hourly rate, with case history from the Labour Court recommending 30%.

In closing it is well worth reiterating the need for employers to get their house in order when it comes to compliance with statutory employment rights.

If it is the case you are covered with employment contracts and procedures, et cetera, then remember to apply those procedures in circumstances relating to workplace disciplinary matters.

It always amazes me how written procedures get forgotten or overlooked by employers when the time comes to actually apply them, resulting in the loss of cases that otherwise may have been successfully defended.

Email: tommy.cummins@outlook.com

Tel: 087 9080313