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| Limiting the Liability of Examiners | Rule Changes - Temporary Workers | Terminating Employee Contracts |
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LIMITING THE LIABILITY OF EXAMINERS |
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Limiting the liability of examiners: recent decision February 2011
The recent High Court decision of Mr Justice Clarke in the examinerships of Michael McLoughlin (Pharmacy) Limited and Sundrive Pharmacy Limited (the "Companies") has far-reaching implications for examiners.
Schemes of arrangement for the Companies were ultimately confirmed by the court but, in the course of the hearing, one of the creditors raised an objection to a clause excluding the examiner's personal liability. While the creditor did not suggest that there was any basis for believing that the examiner had not done anything other than a competent and professional job, the creditor objected to the inclusion of such a clause as a matter of principle. The judge decided that the Companies (Amendment Act) 1990 (the "1990 Act") does not allow the inclusion of a provision granting examiners immunity from suit for negligence arising out of the exercise of their functions. The judge went on to state that, while he was satisfied that the court does not have a jurisdiction to approve such a provision, even if the court had such a jurisdiction, it could only be exercised in a wholly exceptional case. |
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RULE CHANGES - TEMPORARY WORKERS |
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By December 2011, the Agency Workers Directive (AWD), is expected to come into effect in both the Republic of Ireland and Northern Ireland. The directive states that temporary workers must receive equal treatment and rights as permanent workers in respect to pay, working time and annual leave.
The main focus of the directive is:
• The duration of working time, rest periods, night work, annual leave and public holidays
• Pay
• Work done by pregnant women and nursing mothers, children and young people
• Action taken to combat discrimination on the grounds of sex, race or ethnic origin, religion or beliefs, disabilities, age or sexual orientation.
Temporary agency workers must also have equal access to facilities such as childcare and must be informed of permanent employment opportunities. |
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| TERMINATING EMPLOYEE CONTRACTS |
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A recent High Court case has again illustrated the importance of ensuring that a termination of employment is dealt with in accordance with the employee’s contract of employment.
While statute in Ireland provides for minimum notice to be given, if an employee’s contractual notice period is longer than the statutory notice period, then notice of termination must be given in accordance with the contract. Should the terms of the contract be breached, the employee may seek an injunction to prevent the termination of their employment, arising from the defective notice of termination.
For example, in one case, an employee claimed that the notice of termination which he received breached his contractual terms, as it only provided for two weeks notice rather than the 16 week notice period as provided for in his contract. The employee also argued that his termination was not in accordance with the articles of association of the company.
The Court decided that the employee’s contract had been improperly terminated, as the length of notice given by the employer did not correspond with the notice period in the employee’s contract. Since the employee was also a director of the company, a resolution of the board should have been passed effecting his termination. No such resolution was passed in this case. The court held that due to the employer’s “fundamental failure” to adhere to the contractual terms, the employee should be granted an injunction. The court did, however, state that so long as proper procedures were adhered to, the employer could still terminate the employee’s contract at a future date |
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| These are intended as a general guide to the subject matter, it should not be used as a basis for decisions. For this purpose advice should be obtained which takes into account all the client's circumstances. Every effort has been made to ensure the accuracy of the information. In view of its purpose the reader will appreciate that we are unable to accept liability for any errors or omissions which may arise. |
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