Month: February 2022

Modern Morals: ‘My colleague is secretly working from Spain — should I report him to HR?’

Working remotely from a foreign jurisdiction leads to tax, insurance and employment law implications

https://www.independent.ie/opinion/comment/modern-morals-my-colleague-is-secretly-working-from-spain-should-i-report-him-to-hr-41311041.html

By Katie Byrne, February 04 2022

Question: My colleagues and I have been working from home for almost two years now. Our employer introduced a long-term remote work policy but they made it very clear that we must work from a location in Ireland. We can’t work from abroad.

One of my colleagues has been working from Spain, on and off in stints, since 2020. We work very closely together but in the early days he wouldn’t admit that he was abroad. I could see during Zoom calls that he had a suspiciously dark tan. Then, during a phone call one day, I could clearly hear his children jumping into a pool. I asked him straight out and he begged me not to tell anyone.

We’re currently in the middle of a very demanding project and he’s taking off to Spain once again. He refuses to answer emails I send him after 6pm when he’s there. He just clocks off. And to be perfectly honest, I don’t think it’s fair that he’s over there living the life of Riley while I’m working until 9pm or 10pm every night. I’m thinking of reporting him to HR. At the same time, I don’t want to start an all-out war. What should I do?

Answer: While working from home was a fairly nebulous concept at the start of the pandemic, companies have since given their employees clear guidelines on where they can, and can’t, work. Working remotely from a foreign jurisdiction leads to tax, insurance and employment law implications, which is why most Irish employers now insist on their employees working from an Irish location.

I shared your dilemma with employment solicitor Richard Grogan, who is currently dealing with a number of cases involving employees working for Irish companies from abroad. He says the situation can present “a nightmare” for both employers and employees, many of whom are unaware of the implications. “It can come as a nasty shock to an employer when they discover that an employee has been working from Spain for so long that they have now acquired Spanish employment rights,” he says.

“Similarly, it can come as a shock to employees when they find out that a massive part of their salary has to be paid towards the equivalent of USC.”

Richard thinks the issue should be reported to your HR department. However, in the same breath, he suggests that you raise the issue of your excessive overtime with them, too. “If a contract says work finishes at 6pm, then this person is entitled to finish at 6pm,” he notes. “And if the person who wrote the letter is working until 9pm or 10pm, then they should be talking to HR themselves.”

Strategic career consultant Rowan Manahan is of a similar opinion. “If the project is a ‘not business as usual’ piece, with a specific deadline, then the colleague being deliberately unavailable to answer queries past 6pm is selfish at best, possibly obstructive,” he says.

“However, if the overall company culture is long hours, routinely infringing on evenings and weekends, then perhaps your colleague is taking a healthy stand and you need to examine your working habits rather than being resentful of theirs.”

Before you take action, Rowan suggests that you “be really clear about what problem this colleague is creating”. He wonders if there is a way you can “nip this problem in the bud” and “save yourself a real battle later”.

“The most conspicuous issue here is not how you are feeling,” he notes, “but rather if the specific project, or the wider company interest, is being affected by your colleague’s behaviour.”

I also shared your dilemma with workplace coach and mediator William Corless of The Workplace Podcast, who suggests that you try to work out what exactly is triggering you about this situation. “Perhaps this is more a conversation about someone not carrying their weight and the question then is, how do you broach it? It could also be a question of values, whereby one person places a greater value on work, whereas the other places more value on family.”

WFH is a new dynamic which we’re all still trying to negotiate, he adds. “And sometimes we need to go back to the group to renegotiate our service level agreements.It may also be helpful to ask yourself if this is a true ethical dilemma, guided by a sense of justice and fairness, or a personal grudge, triggered by malicious envy.

The following questions might help you better understand your motivations:

1) Would you report your colleague if your current workload was relatively undemanding?

2) If you were considering quitting your job in the near future, would you be just as inclined to report your colleague?

And 3) Would you report your colleague if he was working from a cramped apartment in Oslo (where the weather is currently below zero)?

On that note, I might add that not all ‘stealth expats’ are chasing the sunshine. Some of them had to get away from cramped living conditions and relationship conflict. Others needed to be closer to their family support systems.

This isn’t to say that your frustrations aren’t valid. You’re overwhelmed with work and you possibly have visions of your colleague wearing a Hawaiian shirt at his desk and drinking pina coladas during his lunch break.

But perhaps you could try thinking of him as another human being who is coping as best he can with the emotional fallout of the pandemic, rather than a sun-kissed slacker who’s cheating the system.

Man who mistakenly assumed he was crossing a one-way road before colliding with car loses €60,000 claim

https://www.independent.ie/irish-news/courts/man-who-mistakenly-assumed-he-was-crossing-a-one-way-road-before-colliding-with-car-loses-60000-claim-41321536.html

By Ray Managh, February 07 2022

A MAN who mistakenly assumed he was crossing a one-way road and failed to look to his left has lost a €60,000 damages claim against a motorist he collided with on a “dirty, wet January morning in 2018”.

Judge James McCourt, dismissing the claim of 43-year-old construction worker Darren Dunne, said the most compelling piece of evidence against him was that he had thought it was a one-way system.

Dunne, of Woodleigh Avenue, Blessington, Co Wicklow, sued motorist Sinead Holt of Annaville Grove, Dundrum, Dublin 14, alleging she had been negligent when approaching pedestrian crossing lights at a Luas stop at Blackthorn Avenue, Sandyford, Dublin 18.

Barrister Adrianne Fields appeared with Collins Crowley Solicitors for Ms Holt. She told Mr Dunne in cross-examination that medical reports of his treatment recorded that he stated he had been running across the road through traffic.

Mr Dunne said he did not recall saying this but agreed that if he had seen a child doing what he had done he would have called out a warning to him.

He said he had injured his left knee and right elbow in the collision and it was two years after the incident before it was revealed in new x-rays that his knee had been fractured. He said his knee had caused him the most difficulty.

Ms Holt told the court that she saw Mr Dunne out of the corner of her eye and subsequently braked. However, he struck the side of her car and immediately afterwards she saw him hopping around on one leg in the middle of the road.

Judge McCourt said the incident had occurred after seven o’clock on a dirty, wet January morning and he considered Mr Dunne a decent man who had honestly endeavoured in his evidence to recall what had happened.

Mr Dunne agreed the pedestrian lights were red against him but felt he could have succeeded in crossing the road before realising it was a two-way traffic system.

“There are a couple of stark facts in the evidence – the lights were red against him and he was not familiar with the area and thought it was a one-way system,” Judge McCourt said. “He ran into the side of Ms Holt’s car and sustained nasty injuries.”

Judge McCourt said he could not see what Ms Holt could have done. He acknowledged that the duty of care on motorists is high but it would be raising the bar too high to expect the driver in this instance, who had been driving with care and attention, to have avoided the collision.

Dismissing the case and awarding costs against him, Judge McCourt said Mr Dunne had made a mistake.

Law student left with catastrophic injuries after car driven by banned motorist mounted footpath gets €8m damages

https://www.independent.ie/irish-news/courts/law-student-left-with-catastrophic-injuries-after-car-driven-by-banned-motorist-mounted-footpath-gets-8m-damages-41281654.html

By Tim Healy

A law student left with catastrophic injuries when he was hit by a car driven by a banned motorist who mounted a footpath has settled his High Court action for damages against the driver for €8m.

Francis Dhala (21), Rathmore Drive, Tyrrelstown, Dublin, was one of two pedestrians struck by Paul Connolly who mounted a footpath near Coolmine Railway Station on May 1, 2018.

In May 2019, Connolly (39), formerly from Kildare, with an address at Cherryfield Walk, Hartstown, Dublin, was jailed for eight-and-a-half years, with the last 18 months suspended, for dangerous driving causing serious bodily harm and driving under the influence of drugs. He was the subject of a 25-year driving ban at the time.

The Circuit Court heard Connolly admitted taking drugs the night before the incident when he was driving his child to school and undertook a line of traffic stopped at the railway barrier. He suddenly started swerving and mounted the path before hitting Mr Dhala and a 54-year-old man, who was also badly injured.

Connolly, who initially told gardaí he thought he had hit a bush, did a U-turn and “calmly” drove from the scene with a smashed window but was followed by another motorist who kept in touch with gardaí until they intercepted Connolly.

Mr Dhala sued Connolly and the car owner Mairead McGrath, whose address was given as c/o Allianz plc, Merrion Road, Dublin, claiming negligence and various breaches of duty

Liability was conceded and the case came before Mr Justice Michael Hanna on Tuesday for ruling after he was told a settlement of €8m had been agreed.

The judge described Mr Dhala’s recovery from his injuries as inspirational in what was a “horrifying tale of injury”.

Bernard McDonagh SC with Jonathan Kilfeather SC, said it was a tragic case in which Mr Dhala was struck by the car on what was his last day in college where he had been a first year law student.

He was walking on the pavement with his sister, who was also studying law but was not struck, and was taken to the local hospital in a comatose state before being transferred to Beaumont Hospital where initially his prognosis was poor.

Counsel said he suffered a catastrophic brain injury, effectively where the brain rotates in the skull, as well as fractured hip, rib and leg injuries.

He spent a year in hospital including nearly six months in the National Rehabilitation Hospital.

Despite this, Mr McDonagh said, his client had made a remarkable recovery from what was a life threatening brain injury though still suffers from severe cognitive, executive function and memory losses.

All the medical reports said he suffered a lifelong injury and needs care for the rest of his life.

The defence had taken issue over future care needs because of his recovery but, counsel said, the case comes well within previous case law on the matter.

While there had been a remarkable physical recovery, the psychological factor remained an issue in the case.

The settlement included €4m for future care and €2m for loss of earnings and his legal team recommended the settlement offer, counsel said.

There would be an application to have him made a ward of court because of his doctors’ concerns about his future ability to manage his own affairs.

Mr Justice Hanna said “all plaudits” must go to Mr Dhala whose remarkable recovery was “absolutely staggering and shows obviously there is a fine spirit there and will make the best of what he has”.

Asked by the judge about Mr Dhala’s future, Mr McDonagh said he hopes to do a Masters and go on to be a solicitor. He has very supportive parents and was from a high achieving family with his sister having completed her law degree and his father, who is a lecturer, now working for the UN.

The judge said he had no hesitation in approving the settlement in what was a “tale of horrifying injury and inspirational effort and ability by Francis who has done astonishing things to make his lot as good as it might be”.

One could only hope that he will “in turn offer hope to many people in the situation of catastrophic injuries that they can go on to achieve things”, he added.

He also approved certain payouts from the settlement, including €395,000 for medical bills.