For employers seeking to justify a dismissal for a performance-related problem, the employer should be in a position to explain the problem and how they dealt with it under the following headings:
They must be able to give an explanation as to how the problem came to light. It is not safe to presume that the problem suddenly materialized, particularly where an employee has service of any appreciable length.
The employer must be able to show that they carried out a thorough investigation as to the reasons why performance fell short of what was normally required. Again, it is not sufficient simply to show that there was a failure of performance and that disciplinary action resulted. It may later transpire that there was an obvious reason for the shortfall in performance. A thorough investigation will, or should, unearth such a difficulty at an early stage.
There must be a clear warning to the employee that he/she is falling short of the employer’s requirements. Emphasis on what is required of him/her should be made at this stage. Employers should avoid vagueness and, while a blunt warning may appear harsh, it is in both parties’ interests that there be no misunderstanding as to what was actually meant.
The employer must be able to show that the employee was counselled as to the need to improve and that assistance was offered to help the employee to improve.
The employer must be able to show that they monitored the response to the warning, not simply that the employee was left to his own devices until the employer came back at a later stage and expressed further dissatisfaction and imposed further disciplinary sanction.
If there is no improvement the employer must be able to show that they investigated as to why the warning, counselling and assistance had not given rise to the required improvement.
There must at some stage, if a dismissal was the result, have been a final warning that is clear and unequivocal as to:
what the problem was;
what was required of the employee;
the consequences of failing to meet the required standards; and if a dismissal is the expected result of the disciplinary sanctions.
An employer should not simply demand that the standards be met by a specific date but rather that the standards be met on an ongoing basis and maintained into the future.
The employer must have available evidence of the failure to meet the requirements of the final warning, that that evidence was put to the employee and the employee was allowed the facility of responding and making a case against dismissal before the final decision to dismiss was made.
In relation to the sale of a residential property, a vendor should be aware that before a sale can be finalised, the vendor may be obliged to show evidence of the discharge of a number of charges being Non-Principal Private Residence Charge (NPPR), Household Charge, and Local Property Tax (LPT) which attach to the property.
None-Principal Private Residence (NPPR)
The NPPR Charge is a charge on a property for a period of 12-years from the due date for payment of the charge, as set out by the Local Government (Charges) Act 2009, as amended. The charge came into effect in 2009 and was abolished in 2013. On each of those years, you were liable to pay the charge on the liability date each year. Failure to pay within three months from the liability date resulted in late payment fees and penalties being imposed. The vendor is obliged to give to a purchaser either a certificate of discharge or a certificate of exemption for the charge, on completion of a sale. Certain properties are exempt from the charge, as set out in section 4 of the 2009 Act, for example, a residential property owned by certain charities or your principal private residence is exempt from this charge, but you would still be obliged to furnish to the purchaser, a certificate of exemption in those circumstances. Your solicitor would be able to advise you on whether your property would be liable for the charge or not. The local authority, under Section 76 Local Government Reform Act 2014, has discretion in some exceptional hardship cases to reduce or write-off part of the liability.
The Household Charge is also a charge on property for a period of 12 years from the due date for payment of the charge. It came into effect for one year only, in 2012, and was abolished on 1st January 2013. It was replaced by the LPT. The vendor is obliged to give a certificate of discharge, a certificate of exemption, or a certificate of waiver for the charge. Certain properties would be exempt from the charge, for instance, if a property on the liability date is situated in an unfinished housing estate. In relation to an uninhabitable derelict house, you would have to apply to Revenue; claiming exemption by means of a statutory declaration and furnishing photographic evidence of the condition of the property.
Despite the abolition of the NPPR Charge and Household Charge, vendors still have to deal with both of these charges for a period of 12 years from the last due date.
Local Property Tax (LPT)
A vendor of residential property shall, before completing a sale, pay any LPT penalties and interest in respect of the property. Any unpaid tax shall be and remain a charge on the relevant property to which it relates and shall continue to apply without a time limit until the tax is paid. The solicitor can check with revenue what the LPT status is by being furnished with the LPT ID number, the PIN number attaching to the property, and the Vendors PPS number. This will enable the property’s LPT history details to be accessed.
With any of these charges, you may be able to claim exemptions and the relevant acts have a list of exemptions clearly defined therein.
While most of us are aware that making a Will can greatly simplify matters for our family and next of kin at what is conventionally a difficulty time, not all persons are aware of the device sometimes colloquially termed a ‘living will’ and technically termed an ‘Enduring Power of Attorney.’
Unlike a Will, an Enduring Power of Attorney operates while the deponent is alive but unable to manage their own affairs due to incapacity. This can be due to any number of factors such as a serious injury affecting the subject’s cognitive ability, a serious mental impairment such as would render the subject incapable of managing their own affairs, or the onset of senility, dementia or other such all to increasingly common scenario.
This enduring power of attorney much like a Will must be executed by the deponent/donor while they have the mental capacity to deal with their own affairs – the term accorded to same is that the person creating the power of attorney must be of sound deposing mind at the time of execution.
An Enduring power of attorney is a simple document which outlines the powers which are sought to be transferred should the deponent/donor lose the ability to manage their own affairs and the person(s) to whom the power is to be transferred to effectively steps into the shoes of the incapacitated person. An EPA can either be of a general nature or can specially state the powers which are to be transferred on incapacity. These powers can include passing to the nominated person or persons can include the power to take decisions as to the donors’ personal care (although significantly this cannot cover healthcare decisions) and financial affairs. The powers passed much, like a bequest in a Will, can also be limited by conditions.
Unlike a Will an Enduring Power of Attorney is a contingent document which will only become operative if the deponent/ donor loses the ability to manage their own affairs. Importantly, a power of attorney will only become operative in circumstances whereby a medical practitioner declares the subject to no longer have capacity such that they would be capable of managing their own affairs.
Upon activation, the powers conveyed in the Enduring Power of Attorney will then pass to the persons nominated who effectively take the place of the subject as decision maker. Any person over the age of eighteen years can be nominated provided they are not a bankrupt, have never been convicted of a crime of fraud or dishonesty and are not disqualified pursuant to the terms of the Companies Acts. An individual or trust corporation who owns a nursing home in which you live, or an employee or agent of the owner cannot be the nominee under a Power of Attorney unless that person is also your spouse, child or sibling. Conventionally a donor will appoint two persons usually family members as nominees.
What the Enduring Power of Attorney effectively does is give the donor the power to
1. Decide who will take important decisions for them should the need arise
2. Provides certainty and continuity to the donor and to their families in the management of the donor’s affairs.
In general, only one consultation will be required with your solicitors who will draft the Power of Attorney and required declarations based on your instructions. Thereafter you will be required to attend at the solicitor’s office to swear the Power of Attorney. The procedure is significantly less expensive than the alternative wardship application which would be required in the absence of a Power of Attorney should such incapacity arise.
Much like making a Will, person’s of all ages should consider executing an Enduring Power of Attorney as an important document which will provide certainty and security should the need arise.
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