UNFAIR DISMISSAL

The following is a brief summary of the UNFAIR DISMISSAL ACTS 1977 – 2015

The Act applies to employees (subject to certain exceptions) who are over 16 years of age and who have been continuously employed for one year or more (subject to certain exceptions) with the same employer.

Each dismissal (other than constructive dismissal) is deemed to be unfair and it is a matter for the employer to prove that the grounds for dismissal were reasonable.

Constructive dismissal occurs where the employee resigns with or without prior notice to the employer, due to the conduct of the employer.  In this situation, it is a matter for the employee to prove that the termination of employment was justified.  A fellow employee’s conduct if unreasonable and which is allowed to continue by the employer can be taken into account.

Grievance procedures should be strictly followed before resigning.  All grievance procedures should be fair and rational.  The ‘continuous service’condition does not apply if the dismissal is as a result of any matter connected with pregnancy, the employee’s trade union membership or rights relating to:

• Protective leave
• Natal care absence
• Adoptive leave
• Parental leave
• Carer’s leave

Force majeure leave

A claim can be made within 6 months of the termination date.  In exceptional circumstances this period can be extended by up to 6 months.  Each employee is entitled to a statutory minimum period of notice if you have worked a minimum of 13 weeks for your employer but this will be a longer period if so provided in your contract of employment.  In respect of the 6 month period time runs from the date of dismissal which is the date that notice empires.

Minimum Notice Period

The period of notice that that en employee is entitled to is determined by the length of the period of employment.

Length of Employment

Maximum Notice

• 13 weeks to 2 years – 1 week
• 2 years to 5 years – 2 weeks
• 5 years to 10 years – 4 weeks
• 10 years to 15 years – 6 weeks
• 15 years or more – 8 weeks

It may be a term of an employee’s contract of employment that garden leave is permitted.  Garden leave occurs where the employee who is leaving the job is instructed to refrain from attending at the work place during the notice period.  In effect, this practice is often used if the employer is fearful that the employee may take certain confidential or sensitive information from the workplace during the notice period and to which the employer has proprietary or ownership rights.

WAIVING NOTICE

The employer and employee can agree that payment is made in lieu of notice.  Notwithstanding the foregoing, the date of termination is the date that notice would have expired.

In the event of serious misconduct the employer can dismiss without notice but if you contest the dismissal it is a matter for the employer to show that there was serious misconduct.

The Employment Equality Act 1998 – 2004 deal with the issues relating to equal pay, harassment, to sexual harassment, working conditions, promotions, access to employment, etc.  In addition, the Acts deal with dismissal relating to dismissal/discrimination relating to gender, marital status, family status, age, race, religion, disability, sexual orientation or membership of the travelling community.

UNFAIR DISMISSAL APPLICATION PROCEDURES

Claims in the first instance are made online to the Workplace Relations Commission (WRC).  If the employee’s grievance relates to a statutory entitlement this should be referred to the employer prior to any application being made to the WRC.  The decision of the WRC is binding unless the matter is appealed to the Labour Court. Either party can appeal to the Labour Court .

REDRESS

The WRC or Labour Court have powers to order any of the following where the dismissal is unfair.

• re-instatement of the employee’s previous position under the same terms and conditions
• re-engagement in a different position or in the same position on reasonably suitable terms and conditions
• compensation – which will not exceed 2 year’s remuneration.  The compensation payable will be affected by the conduct of the employee and/or the future of the employee to mitigate his loss and/or if the employee failed to comply with agreed procedures.

The law relating to redundancy can be complex and appropriate advice should always be sought.