Tipp FM Legal Slot – 17th January 2012
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New Year’s Resolutions – Review your Family Circumstance
During the post-holiday period; Christmas and summer, separations and family law matters see an increase. Before Christmas I advised separated and divorced parents on how best to make access arrangements for the Christmas period. Today I will discuss various elements of family law disputes.
The most distressing part of family law disputes is dealing with children.
What is ADR (Alternative Dispute Resolution)?
Before going down the legal/court route, ADR (Alternative Dispute Resolution) should be exhausted.
There are different aspects to ADR.
Mediation: John M. Lynch is an Accredited Mediator: there has been a change in focus in the recent past.
Why and how can two people who are at loggerheads come to an agreement?
They don’t necessarily have to be in the same room. There can be two separate rooms for the parties, if they are working well they can be brought together to deal with their dispute in a civil way.
The Mediator asks the parties about points at issue. The function of mediator is to facilitate an agreement between the parties, not to decide the outcome for them.
What happens if one person/party is completely unreasonable?
If mediation doesn’t work, the Mediator gives a recommendation.
Example:
A construction dispute in Dundalk was ongoing for five years. The parties were diametrically opposed. After four hours they reached an agreement where both parties arrived at same position.
What happens if Mediation doesn’t work?
Gillian O’Mahony has seen in District court situations that often neither party ends up happy.
The Court’s will attempt to act in the best interests of the child.
Will the child ever be asked?
There’s a big movement to have the child’s voice heard. Generally, if the child is mature and at certain age, the Court will look to talk to the child.
Example:
At a judicial conference John M. Lynch spoke with a Canadian judge who said they speak to children in family law disputes. At the same conference a High Court judge opined it was difficult to know whether a child was being manipulated.
In Court situations Judges will apply their own experience. The Court has the option to represent a child.
Court orders
Guardianship – a lot of fathers are unaware that if they are not married to the mother of their child/children, they have no guardianship rights per se. Fathers must proactively apply for guardianship. This poses no problems if the parties are consenting; a declaration is simply signed by mother to state that the father is guardian. This is the most efficient way of doing it without going to Court.
Guardianship does not mean custody or day-to-day care of the child. Effectively, if the mother dies, it means there is another responsible adult to take care of the child.
However, if the mother does not think the father is a good parent the issue of guardianship can be resolved in Court. The Court will grant guardianship where the father is, in fact, involved in the child’s life and will continue to be so.
Custody/Access –further areas
Maintenance
Readjustment to maintenance
- Change in circumstances – varying responsibility
- Child’s circumstances can change
What happens If a parent who pays maintenance is now unemployed?
The Courts is very reluctant to wipe out maintenance, however it will reduce it.
Is maintenance tied to guardianship?
Mixing money with the child’s welfare is not advisable.
Two issues in this regard:
- Is it more beneficial for a child to have a relationship with a father?
- Is it, therefore, right to deny the child that right simply because a parent is failing to deal with maintenance?
According to the Courts – you don’t mix the two.
Example:
A solicitor receives a phone call from a mother stating the father of her child has arrived to collect the child but he has not paid any maintenance. Should the father be allowed to spend time with his child?
The Courts are of the view that:
- It is in the best interests of the child to spend time with both parents.
- Children shouldn’t be used as a negotiation tool.
New Year’s Resolutions -Employment Law
We act for employers and employees in what has recently become a rapidly changing area of legal practice. We have successfully represented our clients in employment law cases at every level from Rights Commissioner, through the Employment Appeals Tribunal and on to the Circuit Court and High Court.
What areas do you advise Employers on?
Some businesses will require a comprehensive review of their employment law practices. Others may require our focus on one or more areas of their employee administration. We will assess your needs and report before implementing agreed recommendations. Our review can look at the following areas:
- Terms of Employment Notices
- Contracts of Employment /Contract of Services including interview and disciplinary procedures, Sexual Harassment and Bullying Policy, E-mail / Internet Policy,
- Health and Safety Compliance, Claims Avoidance, Defence Strategies and Termination of Employment
- Data Protection Act / Freedom of Information implications
Preparation will reduce your exposure to claims and other employee related litigation, but it cannot prevent them. When a claim is made by an employee, you need to know quickly what the likely outcome will be so that you can plan a strategy with your lawyers. Lynch and Partners has vast experience in defence work, having acted for one of Ireland’s largest insurance companies for over 20 years. Our wide and dynamic range of services for employers include:
- Preparing and Reviewing Contracts of Employment/Terms & Conditions of Employment
- Audits
- Pre – NERA Audit
- Rationalisation Advice / Dismissal, Redundancy and Alternatives
- Employment Policies / Office Manual:
- Disciplinary
- Attendance
- Bullying and Harassment
- Grievance
- ADR
- IR
What areas of employment law do you advise employees on?
Employees
With each passing year, employees are receiving greater protection under Irish and European law. Lynch and Partners offers its clients a complete knowledge based service combined with our litigation experience which guarantees you a strong representation in:
- Contract Negotiation and Advice on employment law rights
- Accidents in the workplace
- Bullying and harassment in the workplace and Unfair Dismissal
- Occupational Disease, Repetitive Strain Injuries and Carpal Tunnel Syndrome
- Social Welfare Appeals
- Areas in which we specialise include:
- Advising employees on difficulties in the workplace
- Termination issues – redundancy / dismissal
- General Employment Rights – Working Time, Notice, T & C, Minimum Wage, JLC.
What is Redundancy?
A redundancy situation arises where the job no longer exists and the worker is not being replaced; the job is being made redundant not the person. In order to qualify for redundancy you must have a minimum of 104 weeks worked with that employer, be fully insured through PRSI and be over 16 years of age.
How do I know if I am entitled to redundancy?
To qualify for redundancy in law you must:-
- Have a minimum of 104 weeks in that employment
- Be fully insured through PRSI
- Be over 16 years.
- Valid redundancy situation – see definition
If I am made redundant what am I entitled to from my employer?
Statutory redundancy is the minimum payment an employee is entitled to receive. The entitlement is:
- 2 weeks gross pay tax free for each year of service.
- 1 bonus week’s gross pay.
- All weeks are capped at €600.
Example: John has worked for ABC Manufacturing for 4 years. He earns €750 per week gross. The company is ceasing to trade and all employees are being made redundant. John is entitled to:
- 2 weeks pay for each of his 4 years of service plus 1 bonus week
- 9 weeks pay, but it is capped at €600 per week
- John receives a tax free lump sum of €5,400
Note: Gross Pay is calculated by adding the basic pay to the average regular overtime and benefits in kind so a mobile phone or company car or other benefits should be calculated.
Employers can make additional payments and this is often the case in voluntary redundancy situations.
What does reckonable service mean?
This is a very complicated area and each case should be considered individually. However, as a general rule it can be said that all service is reckonable except for breaks in the final 3 years of service – known as ‘the 3 year rule’.
How much notice am I entitled to from my employer when facing redundancy?
Employees are entitled to two weeks’ notice. Employees on maternity leave or additional maternity leave cannot be placed on notice until the due date of their return to work. During the two weeks’ notice, employees are entitled to reasonable paid time off to look for work, attend interviews or attend to further training and the employer may seek proof of this need so long as it is not to the employee’s disadvantage.
What is the selection process for Redundancy?
The general rule that applies is that where people are of equal status in a job, last in should be first out. Employers, however, may try to use a redundancy as a cull to by choosing less productive workers for redundancy ahead of more productive even though they may be less experienced or less expensive. If you are being made redundant, get advice from your union or solicitor. Look around you in the workplace, is it “Last In, First Out”? Are there other positions becoming available that you might be suitable for?
The employer must have a clear selection criteria when it comes to redundancy and must be able to show that this was applied fairly.
The most common type of case coming before the Employment Appeals Tribunal is where a person is made redundant without being considered for another position in the workplace. The employer in such a situation must prove that they have taken all reasonable steps to make positions available to workers being considered for redundancy first.
What if I am unfairly excluded from redundancy?
Employers may wish to exclude certain workers because they will be too expensive to make redundant. Such a non-selection will be unfair and amount to an unfair dismissal.
Example:
The case of a worker who is nearing retirement after 40 years’ service. The employer has a generous package but if he can exclude the long serving employee, he can save on the redundancy and just wait for the employee to retire for free!
