News & Events



Personal Injury Claims* and the Statute of Limitations

Before any claim begins, a prudent solicitor must always establish that the claim is being brought within the allocated time under law. This is in order for the claim to be brought within the period of time allocated under the statute of limitations. If a claim is not brought within time it is statute barred and the action fails. This is due to the fact that the law prescribes certain periods of time within which a claim must be brought so that there is certainty in law when a claim begins and ends. As the vast majority of claims taken by individuals relate to personal injury claims, we should look at the law governing statute of limitations in respect of personal injury claims.

Generally speaking, all claims must be brought into existence within two years of the date of knowledge of the claim where the claim is based on negligence. This therefore applies to all cases brought for for road traffic accidents, workplace accidents, public place accidents etc. This limitation period is in set down in law under Section 7 Civil Liability and Courts Act, 2004 which amended the Statute of Limitations (Amendment) Act, 1991. However, given the fact almost all claims for personal injuries must be brought to of the personal injuries assessment board, now known as the injuries board, has meant that it is not always straightforward when the two year period ends.

Once the injuries board receives a completed application, they then issue an acknowledgement in accordance with Section 50 of the Personal Injuries Assessment Board Act, 2003. This acknowledgement states that the statute of limitation is paused for the duration of the assessment by the injuries board. If an assessment is rejected either at the outset by the respondents or if an assessment is rejected by either party upon the issuing of assessment by the injuries board, then period of time does not start again until six months after the authorisation issued to bring proceedings. Confused? An example might assist:

Let’s use an example where Sarah is a passenger in a vehicle involved in a road traffic accident on 1 January 2014 where she sustained injuries. Therefore, the statute of limitations in order for her to bring her claim to the court is 1 January 2016 i.e. two years. Sarah must first bring her application to the injuries board. Sarah lodges her application to the injuries board on 1 June 2014. The injuries board sends a Section 50 acknowledgement letter on 1st July 2014 indicating that the application has been received and that for the purposes of her claim, the statute of limitations is now put on hold pending assessment by the injuries board. The injuries board must assess the claim within nine months of 1 July 2014. Now let’s say the claim is assessed and the assessment is rejected in January 2015. The injuries board then issues the authorisation to allow Sarah to commence court proceedings. The latest Sarah will then be allowed to bring her claim is 1st January 2017. This date is arrived at by the following: When Sarah received the Section 50 acknowledgement on 1st July, 2014 there was eighteen months before her claim expired. That period of 18 months was suspended while the matter was in the injuries board being assessed and it only recommences six months after the injuries board issues an authorisation to commence the proceedings. Therefore, the 18 months started counting down in July 2015 i.e six months after the authorisation to commence court proceedings issued in January, 2015.

Obviously Sarah is not in danger of her claim being statute barred by virtue of the fact that she sought legal assistance early and was given advice immediately for her claim. The matter becomes much more serious and time conscious where an individual seeks advice approaching two years after the claim.

Children and injuries

There is an exception to the two-year rule which applies to children. As children do not have legal capacity to provide instructions to their solicitors, with parents being in the primary position to do so, the law allows for an injuries claim on behalf of the child to be brought within two years of their child reaching the age of 18. Clearly an injury to a child when he is five years old and which is not brought some potential 15 years later poses its own difficulties in terms of recollection of events, records and diagnosis of the injury, it is still permitted under law with the advice that assistance should always be sought at the earliest opportunity.

If you require any advice in respect of this topic, please contact us at 074-9725105 or email us at info@mcintyreobrien.ie.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Employment Law Update

Employment law, but not as we know it

For a number of years now there has been considerable talks at government levels and by civil servants in overhauling the current system dealing with employment law disputes. Employment law, as a specific body of law, is still relatively new and continues to grow. The vast majority of governing legislation in Ireland has only been enacted since the 1970′s, brought about on foot of the civil rights movements. This legislation has been often been published on a piecemeal basis in order to protect rights as they emerge whether this at a national or European level.

Every time a new law was enacted to protect an employee’s right, they’re had to be a forum in order to bring a claim where there is a dispute about that specific right. In most employment cases, there is usually a number of different rights which have been infringed at any one time and in any one case. This can result, and still does result, in various different claims being brought to various different bodies for the one set of facts. For example, a scenario where an individual claims that they were dismissed without notice could result in a claim being brought to either the (a) rights commissioner or (b) to the employment appeals tribunal for unfair dismissal or (c); a claim to the labour relations commissioner for a dispute under the industrial relations Acts, 1964; (d) a claim to to the rights commissioner for the breach of holiday under the Organisation of working time, 1997; (e) a claim to the employment appeals tribunal under the minimum notice act 1977 in respect of not having been provided with the notice or pay thereof and/or: (f) a claim to the rights commissioner for not being provided with a contract of employment under the terms of information employment act 1994; (g) and if there wasn’t paid any wages which are outstanding he or she could potentially bring a claim under the rights commissioner the payment of wages act, 1991 and finally (h) if they were discriminated against they could also have a claim to the Equality Tribunal under the Employment Equality Acts.

You could therefore have three separate dates where you are to appear before one of these bodies in order to argue the exact same claim. What is worse is that there are varying different times within which you actually have your dispute heard. You can normally obtain a hearing date in the rights Commissioner within 2 to 3 months of the claim having been lodged, sometimes earlier. At the moment, outside of Dublin in any event, you’re sometimes waiting up to 18 months before you get a hearing date in the employment appeals Tribunal. This is just the hearing date. The case may be adjourned and, even after it has been fully dealt with it, it could be a number of months before the decision is actually provided to you. Once a position of employment has terminated or are there is an issue that needs to be resolved, both employers and employees want to have the matter resolved one way or another. This delay and claims, not to mention the over-complicated myriad of laws that need to be applied in any particular case for lawyers, meant there was a problem that needed to be repaired.

The solution to these issues apparently comes in the form of the Workplace Relations Bill, 2014, which is due to be enacted soon. When put into practice, the employment appeals Tribunal, the Equality tribunal, the Labour relations commission and the National employment rights authority all comprised in one particular body’s/organisation which will be known as the workplace relations commission.

In its current format, every individual claim will now be brought to the one-stop-shop of the workplace relations commission (WRC) of which there will be a single adjudicator to hear the case. Any decision can be be appealed to a new revamped Labour Court. A claims to the High Court on a point of law still be allowed.

There is a greater emphasis on the parties engaging in mediation which is already operating on a trial basis and can be used to great effect where the dispute is relatively minor and there is a willingness to resolve the issue by both parties.

Cases before the WRC will be in private whereas cases before the Labour Court will be held in public and with published decisions.

Ensuring an employer is not entitled to flout its financial muscle against an employee is still covered for by ensuring costs will still be borne by each side and the losing party will not have to pay the costs of the other.

In short, the new system should be welcomed as it will invariably result in a reduction in repeat claims and unnecessary additional costs and should provide for a more streamlined mechanism of lodging and having complaints heard. This can only lead to stronger employment law practices, procedures and policies developing which should contribute greatly to the discipline of employment law.

If you have any questions or queries in respect of any employment matter, whether you are an employer or employee, please do not hesitate to contact us at any of our contact details, including our contact number at 074 – 9725105 or you can drop us an email at info@mcintyreobrien.ie and we’ll be happy to address all and any of your queries, questions or cases.

 

 

 

MAINTENANCE, ACCESS & GUARDIANSHIP- FAMILY LAW

The sad reality is that relationships sometimes break down. Where parties cannot reach an agreement, solicitors can assist by providing advice and representation for those involved in a family law matter.

Below is a quick overview of some of the more commonly found issues in family law proceedings:

Maintenance

The Family Law (Maintenance of Spouses and Children) Act, 1976 allows for the payments of maintenance by a spouse for the support of the other spouse, and by a parent (whether married or by not) for the support of any dependent children where there has been a failure to provide reasonable maintenance. Since 1st January 2011, similar rules apply to civil partnerships and the children thereof.

When confronted with the issue of maintenance, it is recommended that both parties try to reach an agreement between them in respect of the amount of maintenance which is to be paid. This can be done by negotiation directly with each other, through their solicitors or through mediation/collaboration/arbitration.

Where it is not possible to reach a settlement on maintenance between the parties, an application can be made to the Courts and the Judge can be asked to rule on the matter.

The vast majority of claims for maintenance are brought before the District Court where the maximum maintenance that can be ordered is €500 per week for a dependent spouse and €150 per week for each dependent child. If Maintenance is sought above those figures, then an application can be made to the Circuit Court.

The amount of maintenance which is to be paid depends on a number of circumstances such as the income and earning capacity of the spouses, any dependent children of the spouses and any other dependent children of which either spouse is a parent. The court can also have regard to any property, financial resources, income and the needs for any dependent children.

Where a maintenance order is made in respect of dependent children, maintenance is usually paid until the child or children reach the age of 18, or, where the child is in full time education, until the age of 23.

Custody & Guardianship

Custody involves the day-to-day and physical care and control over a child. As a general rule, a natural mother of a non-marital child, being the sole guardian, is generally entitled to the sole custody of her children.

The effect of an order for custody usually means that the parent who has custody can expect for the child to live with them. It is possible in some cases to have joint custody of the children which will usually mean that a child resides with each parent for a specified period of time.

Whereas custody confers responsibility for the day-to-day activities for a child guardianship relates to rights and duties relating to the welfare and upbringing of the child. This can include decisions in respect of schooling, medical treatment, any particular religious belief the child is to be reared with and any decisions in respect of leaving the country.

Unmarried mothers are the automatic Guardian of their children. All children born to parents who are married to each other, or subsequently get married to each other after the birth of the child, are automatic guardians of their children.

An unmarried father can apply to the District Court under the Guardianship of Infants Act 1964 to be appointed a Guardian. Alternatively, the mother can consent to the father becoming a Guardian by completing a statutory declaration.

If the court is asked to rule upon guardianship been granted, then the Court will take into consideration all the circumstances of the case and, in particular, what is in the best interests of the child.

Access

Where a parent does not have full custody of a child, he or she may apply for access to the child/children. Access will then allow for visitation periods which may be weekly, monthly or just on holidays depending on how close the parties live to each other.

Access is normally granted, irrespective of the difficult circumstances which existed between the parents during the course of their relationship. In more serious cases, access can be granted on a supervised basis.

Like maintenance, it is preferable if the parties can reach an informal arrangement of access without having to go through the courts.

Once access is agreed, or ruled upon by the courts, an access schedule is put into place whereby the person seeking access has a set time and day for when access is to take place.

As the circumstances surrounding a breakup can be trying for both parties, it is important for each parent to consider access should be a positive experience and should not be used as an opportunity for either parent to look for information from the child, to comment negatively on the other parent or to lavish and spoil children with expensive presents as a means for overcompensating the lack of daily interaction with the accessing parent. Similarly, the parent availing of access should ensure they are always on time, that the schedule for access is not changed arbitrarily and the interest of the children always comes first.

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If we can assist by providing you with advice and representation in family law matters, please contact us at 074-9725105 or at info@mcintyreobrien.ie.

 

 

 

 

What you need to know about Employment Law Contracts

Employment Law Contracts

Employment law in Ireland is vast and varied. There are no less than 16 separate statutes governing employment rights and obligations in Ireland, in addition of which there are also a number of European employment law Directives. Below is a quick run through what employees should be aware of and what employers should definitely know:

Employment contracts are subject to the Terms of Information Employment Act, 1994. Section 3 of this Act provides that all employers must provide their employees, and within two months after the commencement of employment, a written statement containing such terms and conditions of employment as the name of the employer, the place of work, the title of the job, the method of pay.

Adherence to this law is far from universal amongst businesses and compliance usually depends on the size of the organisation you work for. Generally speaking, large organisations have at least one HR officer or HR department which ensures the business properly applies the legislation. Many smaller businesses however either tend to overlook this obligation or are uncertain how to formalise their employment relationships with their employees. Even though terms and conditions of contracts can arise from practice and custom, the fact remains that if a written statement is not provided then the employer will be considered to be in breach of the legislation.

The failure to provide this statement may lead to a claim being made against an employer by an employee who can make a complaint to the Rights Commissioner, which is a division of the Labour Relations Commission. If the case is well founded, the Rights Commissioner can make an award of up 4 weeks pay. While this complaint usually only arises in conjunction with a separate complaint, for example a claim for unfair dismissal, it is an issue that all employers should be mindful of.

Interestingly, the obligation to provide an employment statement also applies where someone takes over a business from someone else. In that scenario, the second business owner is still liable to the employees for a written statement of employment and cannot rely on the argument the original owner should have provided it.

Fixed Term or Specified Purpose Contracts

These contracts are slightly unique and are sometimes described as ‘atypical’ employment contracts. They are distinguishable from ‘open-ended’ contracts. With fixed term and specific purpose contracts, there is a starting date and a defined finishing date. If fixed term, it is as the name suggests for a fixed duration e.g. one year contract only. If the contract is for a specific purpose, the ending of that purpose brings the contract to the end. Common examples include the purpose of covering for an employee who is on maternity leave or for the purpose of completion of a specific project.

Employers should take care when utilising these types of contracts as there are many statutory obligations. For example, the Protection of Employees (Fixed Term Work) Act, 2003 provides that fixed term workers may not be treated less favourably than comparable permanent employees unless the employer can objectively justify the different treatment.

If an employer wishes to renew a fixed term contract, then it is essential that a written statement is provided to the employee notifying them that the contract is to be renewed and the objective reasons why the employee is not receiving an open ended contract. This written statement must be given to an employee either before or on the date of the expiration of their current fixed term contract or else the employer will be in contravention of the law.

Also, employers cannot continuously renew fixed term contracts in order to benefit their business. If an employee, whose employment has been employed on 2 or more continuous fixed-term contracts, the total duration of those contracts may not exceed 4 years. After this, if the employer wishes to renew the employee’s contract, it must be an open-ended contract unless there are objective grounds justifying the renewal of the contract for a fixed term only.

In the event there is non-compliance with the obligations under fixed term contracts, again a complaint may be made by the employee to the Rights Commissioner where the Rights Commissioner can award compensation up to two years remuneration.

Conclusion

In conclusion, good business management means ensuring your business is fully compliant with your obligations in providing your employees with their correct employment contracts. This assists your business by ensuring your employees know their duties and obligations while also protecting you from claims which could otherwise have been easily avoided.

Garda Vetting Filter

Since the 31st March, 2014, an administrative garda vetting filter has applied to the disclosure of certain criminal convictions.

Where certain organisations are registered, such as childcare or educational bodies, it used to be the position that all prior convictions were disclosed to a potential employer.

The impact of a previous conviction on an individual’s record clearly lessens the potential employee’s prospect of securing employment.

This hardship mainly lies in the fact that the previous conviction may be irrelevant to the suitability of the employee in relation to the job. The conviction may also be of historical significance only, particularly where the conviction occurred when the employee was young and immature and the conviction was a ‘once-off’.

Fortunately, since the filter began to be applied, certain offences are now not being disclosed.

Convictions for motoring offences and most public order offences will not be disclosed where they are over seven years old. This occurs even where more recent offences have been committed.

If an individual has a District Court conviction for any other minor offence, and it is the only conviction that individual has (excluding public order and road traffic offences over seven years old) then that offence will also not be disclosed.

If any individual has been provided with the benefit of the Probation Act, this too will not be disclosed except in cases where the circumstances of the offence gives rise to a bona fide concern that the person concerned may harm a child or vulnerable person

Any convictions involving offences against a person, offences of a sexual nature and any conviction on indictment will still be disclosed.

Details from the Garda Website on the issue can be found here.

The implementation of this filter is a positive step to alleviating the disproportionate punishment a conviction can have on an individual’s life many years after being convicted. This filter will hopefully become the initial step to addressing and finding a solution to the question of how long must a person be punished for even after they are convicted and serve their sentence? In time it is hoped legislation will be published to deal with the issue of spent convictions; in the meantime, this advancement in policy is to be broadly welcomed.

McIntyre O’Brien Solicitors New Website

Welcome to our new website.

At McIntyre O’Brien Solicitors, we are always striving to better and improve our services for our clients. In today’s digital age, we recognise that electronic access to our information and material is essential for you to know who we are, what we do and how we can help you. To this end, we are proud to display our new look website which enhances our existing online presence.

Please check back regularly as our website is still a work in progress with new articles and items of interests being updated continuously. Further, if there is anything that you think we may need improvement with, or if you would like to see some additional features, drop us an email and we would be happy to respond.

Thanks again for visiting and if you have any enquiries, please email or call us at 074-9725105.

Solicitors can now attend Garda Interviews

A profound change in criminal investigations has occurred with the DPP having directed that Solicitors are now allowed into the interview room if their client requests them to be present during a detention. Previously, solicitors were only allowed to have access to our client during the course of the detention but not to be in the room during questioning. The change has come about as a result of the decisions of DPP v. Gormley & Others which recently gave further guidance to the issue by the Supreme Court.

This change in procedure is welcomed albeit with a caveat. The fact remains that this profound change will need to be closely reviewed in the short term. Further, the fact that the Law Society were not consulted prior to the decision has left criminal defence practitioners trying to ascertain the extent and duties of our roles in such situations. Clearly, more dialogue is necessary between all of the authorities and it will be sometime before the extent of this decision is understood.

To read more on this, please see the Irish Times link here.

In the meantime, we are available to our clients to assist them in any situation where they are arrested. If this applies to you or someone on your behalf, please call us immediately at 074-9725105.