SOME PROS AND CONS!

FROM THE FRANCHISOR’S POINT OF VIEW (E.G. MCDONALD’S) 

Pros:

1. The company can expand very rapidly by franchising out a number of stores at the same time without committing large sums of money towards fitting out and refurbishing each store as it becomes available.
2. The Franchisor must supply ongoing marketing support but once a store is set up it receives a valuable income stream of between 4-6 % of sales without any further input or contribution towards the cost of those sales.
3.  The Franchisor usually insists on the same store layout and hygiene plan and staff structure in each store so that standards are more easily maintained, the public know exactly what to expect and their investment is protected.

Cons:

1. The Franchise Agreement for the larger Brand companies tends to be tilted somewhat against the Franchisee with the result that disputes over sales targets, menu changes and marketing support can arise quite frequently.
2. As the stores are being run by the Franchisee and not by the Brand company itself, the Franchisor can often feel aggrieved at the loss of control over the running of the store.
3. The royalty payments can be delayed or stopped by the Franchisee in a dispute and arrears of royalties can be difficult to collect.

FROM THE FRANCHISEE’S POINT OF VIEW.

Pros:

1. It is easier to obtain loan finance from a bank when the retailer is linking up with a major Brand name.
2. It becomes easier to fit out the shop as the Franchisor will supply architect’s drawings and other specifications.
3. You receive marketing support and other feedback from the Franchisor.
4. You are buying in to a known and established product or service where the demand is already there.

Cons:

1.  You have to pay an upfront Franchise fee which can be considerable where the Franchisor is an internationally known brand. You also have to fund an expensive fit out.
2. You are restricted to selling only the items covered by the Agreement.
3. The royalty payment can be a drag on cash flow if sales are flat.
4. You may be restricted by the Agreement as to how many stores they might allow you to operate.

Summary:  Risk can be minimised under a Franchise, but caution is advised. Talk to other Franchisees about their experience and ask your solicitor to bring you through the draft Franchise Agreement before you take it any further.

• Please note that this article is prepared for general information purposes only. It is not legal advice and should not be taken as such.

The farm is a workplace, so farm owners need to ensure all safety measures are in place to safeguard employees and contract workers, farm visitors, and family members. Statistics show that among the most common accidents are trips and falls, incidents with livestock and machinery accidents. The farmyard is the area where many accidents, some fatal, occur.

Farm Owners’ Legal Obligations

Similar to other obligations that employers have to their employees and farm visitors, The Safety, Health, and Welfare at Work Act, 2005 sets out the duties and responsibilities of farmers. Principal among these is the Duty of Care owed by farmers to others visiting or working on their farm.

Duty of Care

The Act needs to be carefully read to ensure compliance, but its main points are:

• That the farm must be a safe place to work.
• Ensure that the farm has in place safe work systems.
• Training for employees
• Farm machinery: is safe to use, properly maintained, and only qualified workers permitted to use them.
• Protective clothing: where necessary, farm workers should be provided with appropriate protective clothing.

 The responsibilities, however, are also on the farm workers (employees) to ensure the legislation is complied with by complying fully with instructions of their employer.

Farm Safety Statements

This a legal obligation that all farmers must display in writing and give to all farm workers and also all independent contractors who work on the farm.

The statement will identify hazards on the farm and give an assessment of the risk of injury associated with the hazards in order to minimize any accidents. However, farms with three or less employees are exempt from the Farm Safety Statement requirement.

Consulting your solicitor is always the best course of action for any farmer in doubt of his/her legal obligations.

The plaintiff worked in the defendant’s restaurant as a general assistant. In July 2018, she informed her line boss that she was pregnant. This information was forwarded to the general manager, a Mr Barnes. He commented that there “must be something in the water” as a number of employees were on pregnancy leave. After that, the plaintiff took sick leave as she experienced back pain and nausea. On her return in September 2018, she met Mr. Barnes and her supervisor on how to deal with the situation. The plaintiff alleged that Mr. Barnes informed her of her social welfare entitlements and having spoken to a colleague, the plaintiff informed the defendant that she would take certified sick leave. The plaintiff’s final medical certificate expired on 29 November 2018.

On the 18^{th of} November 2018, she was informed that there was an envelope for her and on visiting the office of the restaurant, the plaintiff’s supervisor handed it to her which contained the plaintiff’s P45. The supervisor claimed she knew nothing about the contents of the envelope. The plaintiff took her case to the Workplace Relations Commission (WRC). At the hearing, there was confusing evidence from Mr. Barnes about the issuing of the P.45. It transpired in evidence that the P45 had been filed with the Revenue Commissioners and the day after the plaintiff was given her P45, a permanent full-time position for a general assistant had been advertised by the defendant.

The plaintiff won her case in the WRC and the Circuit Court, and the defendant appealed to the High Court. The High Court judge determined that the sole issue before it was to decide whether the issuing of the P45 constituted a dismissal. The defendant submitted that the issuing of the P45 did not constitute a dismissal. The judge in considering this submission stated: ‘’While a P45 is an administrative statement of an employee’s pay and deductions for the year up to the date of termination of employment, it is easily and most readily understood as the document which, in itself, is notice that the employment itself has terminated. It is understood in popular language as such, even by those who know nothing of its legal effect and have never seen a P45, the term is understood: ‘getting your P45’ means being fired.”

Bearing in mind that Mr. Barnes had discussed the plaintiff’s options with her previously, the judge did not accept that Mr. Barnes impressed upon the plaintiff that her job would remain open and would only be filled by a part-time employee. The defendant submitted that the plaintiff is not entitled to treat a P45 as a dismissal without making “proper and substantive inquiry” of her employer, in line with Finnegan v. Boylan Group UD2/2001 and A General Operative v. A Packaging Company ADJ-00008541.

In response the judge said: ‘Context is everything. While it was submitted that the plaintiff should have sought clarification from Mr Barnes, Ms Haragus or Ms Lungu, this is not a reasonable suggestion. Ms Haragus was not at work, Ms Lungu had already told the plaintiff she did not know anything about it, and the document had come from Mr Barnes as that witness conceded. In those circumstances, recalling his reaction to her pregnancy, the conversation about her getting social welfare, and the arrival of a P45 with no explanation, the plaintiff took the natural inference: she had been fired.”

The judge continued: ‘If, as the defendant asserts, the P45 had issued in error, it was for the company to contact her and correct the record, not for her to make sure that the P45 was intended for her. It clearly was. The attempt to ‘row back’ was too little, too late. The letters did not dispel the impression that the plaintiff had been fired but attempted to lay the blame at her door. The date of cessation on the payroll, the ad for her job and the steps taken to create and circulate the P45 satisfy me that this was a deliberate decision.”

The judge explained that the effect of the Employment Equality Act, 1998 is that there is a presumption that the dismissal of a pregnant woman is discrimination on grounds of gender.

The judge said that it was reasonable for the plaintiff to believe that she had been fired on account of her pregnancy and that there was no onus upon her to follow-up on the issuing of the P45. Consequently, the judge found in favour of the plaintiff and upheld the decisions of the WRC and Circuit Court.

In deciding the compensation amount, the judge found that the plaintiff was entitled to €66,501.28 pursuant to s.7 of the Employment Equality Act, 1998.

Karpicz v Graham O’Sullivan Restaurants Limited [2024] IEHC 432.

The general rule is that claims must be made within two years of the date of the accident. However there are exceptions to that, namely (a) if the injured party is a minor then the two-year period starts on their 18^th birthday (b) delayed knowledge of the injury, as it can often happen that the injury caused by the accident may not become apparent until  some considerable time after the accident (c) if the injured party was incapacitated, for example, in a coma. It is important to note that the two-year period applies to the actual issue of proceedings and not contacting your solicitor.

When in discussion with your solicitor it is important not to exaggerate the injury, so the choice of court is important. If you take a case to the High Court (where the legal costs are high), if the award of damages is under the jurisdiction of the High Court then the court will only award legal costs on the Circuit Court scale. This will leave you with a shortfall in legal costs and it could in fact exceed the actual award. This happened in a recent case where the case was taken in the Circuit Court, the personal injury award to the plaintiff was €8,000 and the court awarded costs on the District Court scale which left the plaintiff with a legal bill more than the award (Nolan v. The County Registrar for the County of Waterford & Others [2024] IEHC 253). That case was appealed to the High Court by way of Judicial Review, but the High Court confirmed the decision that the award of legal costs on the lower court scale of fees was correct.

So, choosing the right court is especially important as is not to exaggerate the injury. Once proceedings are issued there is no time limit for a conclusion. It helps to have all your information, documents, witnesses, medical receipts, dates etc ready for the solicitor to proceed. It is possible the other side (defendant) will seek to delay the case, and this is a matter which your solicitor can attempt to fight back on but in reality, there is not a lot that can be done except in cases of excessive delays. So, be patient and follow the advice of your solicitor, it is in their interest too that the case is heard as soon as is possible.

Redundancy

This can end up being very expensive for employers if not handled carefully. To comply with the Redundancy Acts, it is advisable to consult your solicitor before making any employees redundant. When an employer decides, on redundancy grounds, to let go an employee from their company, strict rules apply to make the purported redundancy legal.

A common reason to make a redundancy is when the job position of the employee ceases to exist, for example, when two companies merge.  In such a situation no new employee can be taken on to continue in that role. Re-organisation (downsizing of the company) is also a recognised redundancy situation. Where a company is making several redundancies, the redundancy process of selection is very important. Here an accepted rule is the ‘Last in First Out’ rule. In other instances where the ‘Last In…’ rule is not used the employer must list the possible candidates for redundancy and score or rate their skills combined with their length of service with the company, absenteeism, punctuality, and disciplinary record. But in this process, impartiality is critical. A bias against an employee chosen for redundancy could result in an unfair dismissal case taken by the employee. An employer must inform the employee (or employees) that a redundancy situation has arisen and must inform them of the process to be carried out in order to determine who will be selected to be made redundant. This is known as the ‘consultation process.’

Employee Rights

An employee is entitled to a lump-sum payment on leaving their job under redundancy. To qualify, employees must have two years with their employer in which they will receive two weeks’ pay for each year of employment and one further week’s pay. There is a maximum of €600 per week. An employer can give more than the statutory entitlement if they wish to.

Severance Contract

This can be a useful device for employers to avoid any future claims by a former employee for unfair dismissal or unfair redundancy selection. Basically, the employer gives the employee ex-gratia sum over and above the statutory payment and these terms are usually set out in a severance contract. If the employee accepts the severance contract, then they cannot later make a claim against their employer regarding their departure under redundancy.

CAN THE COURTS FORCE MEDIATION ON PARTIES IN DISPUTE?

Over the years, litigation has become more complex, more protracted and often more expensive. An action started in the High Court can then progress to the Court of Appeal and sometimes even on to the Supreme Court. This can add years and huge costs to the case and make litigation prohibitive for all but the wealthy.

In recent years, non-court options have become more popular and terms like Mediation and Alternative Dispute Resolution (ADR) are well known to the public. Reference to mediation has moved from the Family Law Courts to all other courts who entertain disputes. You read in the papers how a judge might gently advise the parties to think about mediation as an alternative, but the question is often asked:  can a judge effectively compel parties to enter into mediation?

A recent superior court decision in the UK, which is more than likely to be followed here, suggests that a judge can be equally forceful in pushing the parties towards settlement of their dispute by mediation.

On 29 November 2023, the Court of Appeal in London issued its judgement on whether litigants can, in effect, be compelled to use other alternatives to the court process such as mediation.

In this case, the plaintiff sued his local council alleging it had negligently allowed Japanese Knotweed on their adjacent site to enter into and infest his garden. The council asked him to suspend his case while their internal complaints department investigate and try to resolve the matter.

The court was asked whether parties in dispute could be compelled to use other non-court-based resolution methods, such as using the council’s housing dispute scheme.

The trial judge, in the High Court, felt his hands were tied by an earlier 2004 decision where the presiding judge, Lord Dyson suggested that compelling parties to enter into mediation would be a denial of their right to access the courts.

However, in the 2023 Court of Appeal case, the judge decided to depart from Lord Dyson’s comments on the grounds the judge’s words did not inform his decision in that case, were spoken as an aside and should have no bearing on future court decisions.

The Court of Appeal then adopted a new stance where, if appropriate, the court may, using its discretion, require parties to use what it called “non-court-based dispute resolution”. The judge in the case stated quite clearly that “experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly even with initially unwilling parties, mediation can often be successful.”

This judgment would appear to open the door now for courts to actually require or compel parties, who may initially have been unwilling, to engage instead in another form of dispute resolution. The judge did, however, make clear that the parties could always proceed to litigate their dispute if the mediation process proved unsuccessful.

In a rather unusual move, both the Law Society and Bar Council of England and Wales were represented at the hearing and so the final decision on the issue is likely to determine the law both in the UK and Ireland in the years ahead.

The courts are now more likely to push parties to mediation while respecting their right to use the courts if they prefer.

The old way of courts encouraging mediation is likely to become one of compelling parties to do so. Expect to see the mediation and ADR routes become even busier in the future. This is even more so with the introduction of the Mediation Act in Ireland.

James Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.

A delivery man was making a delivery to a customer’s house. He parked his van close to the wall of the customer’s house and went around the other side to get the parcel. On doing so, he took a step backwards and his right foot went into a pothole on the road. The pothole was about eight inches in depth and about two feet wide. He stumbled but did not fall.

The plaintiff said he experienced immediate pain to his right knee, and he was unable to continue working that day. The pain continued and he was not able to partake in activities. After enduring the pain for a while, he had an MRI scan done which showed a significant injury to his knee.

Medical evidence showed he had post-exertion pain in the anterior aspect of his right knee. Initially the doctor recommended injections to deal with the pain but later changed that opinion and suggested instead the plaintiff undergo arthroscopy surgery.

An engineer for the plaintiff said several repairs had been done to the pothole but these were deficient to fix the problem. It was conceded that the pothole would be visible to pedestrians but not a person exiting a car.

The court was satisfied that the responsibility for the road lay with the County Council and the repairs to the pothole by the council were clearly insufficient. It followed therefore that the council, or its agents were negligent in failing to carry out proper repairs to the pothole.

Having decided on the party responsible for the accident, the court then considered the amount of damages that the plaintiff was entitled to.

The MRI evidence also established that the plaintiff had suffered a tear of the lateral meniscus in his knee.  The court was satisfied with the plaintiff consultant’s reasoning for changing his opinion on the necessity for surgery. The court rejected the suggestion, made in cross-examination, that the consultant had recommended surgery to “puff up” the plaintiff’s case.

Having considered all the evidence, the court awarded €45,000 for pain and suffering to date with €15,000 for future pain and suffering. The court also awarded €5,000 for the costs of the procedure and €4,000 for the plaintiff’s inability to work for four weeks post-surgery amounting to a total of €69,000.

Hickey v. Tipperary County Council [2023] IEHC 362.

Slip, trip, and fall cases are a common form of injury in personal injury claims. The owners of property, whether private, commercial, or State owned, are required by law to take reasonable steps to avoid such accidents happening on their property. It is becoming more common nowadays that the courts are dismissing false or exaggerated claims, so it is important that people taking such cases have had genuine accidents and that they can establish both that the property owner was negligent and that such negligence was the cause of the accident.

Examples of claims that would fail are:

• At the time of the accident the claimant was trespassing on the property. This is where the claimant had no right to be on the property when the accident occurred.
• Where the claimant caused the injury through their own dangerous or reckless actions.
• Where the claimant ignored warnings of the property being dangerous.
• Where there was clearly a dangerous building or part of a building in dangerous condition which the claimant ignored.

A general rule applies to property owners that they owe a duty of care to lawful visitors to maintain their premises in a clean and safe condition. This applies very much in the workplace so that employers, whether they own the property or lease it, have a duty of care to ensure the building is safe for employees to work in.

NEGLIGENCE  

A claimant in a personal injury case must not only prove the injury sustained but must prove that the property owner was negligent in the management of the property. An example of this would be a slip on a supermarket floor where a person sustains an injury requiring hospital treatment and loss of earnings while out of work. The mere fact that the person slipped on the shop floor is not enough to win the case, the claimant must establish that the shopkeeper was negligent in maintaining the safety of the shop floor. If the shopkeeper can show that the shopping aisles are inspected at regular intervals throughout the day and the spillage occurred between these times, a court could rule that it would be unreasonable to impose a strict duty of care as shopkeepers cannot be expected to predict a slippage that usually happens suddenly.  A court will look at whether the accident could have been avoided and if the court believes the defendant did everything reasonably expected of them to prevent accidents, then a court is unlikely to find against the property owner.

RECORDING THE ACCIDENT

When an accident occurs in a place of work or shopping centre or wherever else, a note of the incident should be recorded in the event you are going to follow it up with a claim. Keep all records, names of witnesses, dates, and receipts from visiting the doctor. It is always very helpful on the day to take a picture, if possible, of where the accident occurred. Keep all these and give to your solicitor.

If you wish to speak to a solicitor about any aspect of a personal injury case please do not hesitate to contact us on 0433346440 or at brendan@connellannoonesolicitors.ie

Connellan Solicitors LLP would like to congratulate our former Partner, Michael Connellan Junior, who has been appointed as a District Court Judge by the Minister for Justice. Michael was a partner in the firm for a number of years and is now following in the footsteps of his father who was also a District Court Judge.

It’s a very proud moment for Michael, Ann and his family and indeed all in Connellan Solicitors LLP. Two of our former partners have now gone on to be District Court Judges. Michael will be a valued and diligent member of the bench.