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In the Republic of Ireland an employee who satisfies the legal qualifying criteria has a right not to be dismissed unfairly.
In general, protection against unfair dismissal stems from the Unfair Dismissals Acts, 1997-2007 (the Acts) and the Protection of Employment Act, 1977.
The Acts apply to any person:
- Working pursuant to a contract of employment
- Employed through a recruitment agency.
In circumstances where an employee is employed via a recruitment agency, the third party/hirer is deemed to be the employer for the purposes of the Acts. In general the Acts do not apply to persons who are:
- In the continuous service of an employer for a period of less than fifty-two (52) weeks
- Working beyond the normal retirement age of sixty-five (65) or who have not attained the age of sixteen (16) years
- Members of the Defence Forces or An Garda Siochana (Police)
- Working for a close relative in a private house or farm, provided both the employer and employee live in the same house
- State employees other than certain industrial categories
- Officers of the Health Boards and Vocational Educational Committees
Undergoing full-time training or apprenticeships with FAS or certain prescribed professional apprenticeships, which have been afforded statutory recognition.
2. Trial periods
Generally, a person with less than fifty-two (52) weeks of continuous service with an employer will not be entitled to bring a claim for unfair dismissal under the Acts. Although, we note that such a person may bring a claim under the Industrial Relations Acts. However, any redress awarded under the Industrial Relations Acts in such circumstance is not binding.
3. Reasons for Dismissal
In general, the Acts provide that every dismissal will be presumed to be unfair unless the employer can show substantial grounds justifying the dismissal. In effect, an employer must show that a dismissal was connected with one or more of the potentially fair grounds set out in the legislation (see below). An employer must also show that they acted reasonably and adhered at all times to natural justice and fair procedures.
Pursuant to the Protection of Employment Act 1977 “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”In general, an employer can seek to rely on one or more of the following to show that the dismissal was fair:
CapabilityCapability-related dismissals usually centre on issues like lateness for work, unsanctioned absenteeism and persistent absence through illness.
CompetenceCompetence refers to an employee’s ability to do his/her job. An employee needs to be made aware of the standards that are expected of him/her.
ConductConduct covers a very large area of behaviour and might be more accurately termed misconduct. There is a need to distinguish between “gross” misconduct and “ordinary” instances of misconduct. Gross misconduct may give rise to instant (summary) dismissal without notice or pay in lieu of notice (refer to paragraph 5.5).
RedundancyAn employer will need to establish that a legitimate redundancy situation existed and that therefore the dismissal was fair for restructuring and/or economic reasons. Objective criteria should also be adopted by an employer when selecting employees for redundancy.
Fair PracticeAn employer is required to:
- Have in place an appropriate Code of Practice on Grievance and Disciplinary Procedures
- Apply the Disciplinary Procedures to ensure constitutional and natural justice is afforded to the employee.
4. Additional Protections
It is of paramount importance to note that certain dismissals do not require proof of fifty-two (52) weeks continuous service in order for the dismissed employee to seek redress under the Acts. The need for fifty-two (52) weeks continuous employment does not apply where dismissal wholly or mainly results from any of the following:
- Trade union activities or membership
- Race, colour or sexual orientation
- Religious or political opinions
- Unfair selection for redundancy
- Pregnancy, or any matters or needs connected therewith
- Certain breaches of an employee’s rights to parental leave or force majeure leave
- Certain breaches of an employee’s rights to carer’s leave
- An employee’s age or gender.
5.1 Dismissal Procedure
There is a legal obligation on all employers to supply all employees, not later than twenty-eight (28) days after commencing employment, with written procedures which will have to be observed before dismissing an employee. Any changes to the procedure must be notified to the employee within twenty-eight (28) days of the change being made.
Generally, the use of appropriate disciplinary procedures is imperative where a dismissal is being contemplated by an employer. Failure to use or comply with appropriate procedures will be taken into account by the Workplace Relations Service in awarding compensation. Procedures should normally include a set of graduated steps from verbal and written warnings to suspension on pay and eventually dismissal. There is no set rule about how many warnings there should be in any case.
In any disciplinary procedure, the rules of constitutional and natural justice apply and the employee should be given an opportunity to rebut the allegations being made against him/her. If requested, an employer is legally obliged to provide the employee with the reason(s) for dismissal in writing within fourteen (14) days of such a request being made.
5.2 Duration of the notice period
Notice requirements are normally prescribed in the contract of employment. Where they are not (or where the contract specifies a period shorter than in the table below) the following statutory minimum notice periods apply:
|More than 13 weeks but less than 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|
5.3 Treatment during the notice period
During the notice period an employee continues to enjoy all the rights and entitlements s/he would normally enjoy. In cases of redundancy, an employee is entitled to a reasonable time off to look for work or training opportunities. The employer is entitled to ask for evidence that this is the purpose for which the time off has been used.
5.4 Payment in lieu of notice
An employer is entitled to pay an employee in lieu of his/her contractual or statutory notice if they wish to do so.
5.5 Dismissal without notice
Certain serious breaches of company rules, custom and practice may result in an employee’s summary dismissal without notice or payment in lieu of notice. The following list, while not exhaustive, is an outline of the type of offences that may, depending on the facts of the particular case, constitute gross misconduct:
- Deliberate breach of safety regulations
- Theft of, or malicious damage to, company property, customer property or another employee’s property
- Sleeping on duty
- Interfering with or falsifying company or client records
- Assault on another employee, member of management or a customer/client
- Being in possession of controlled drugs or alcohol while on duty, whether such drugs or alcohol are for the employee’s own use or for distribution or sale to others
- Reporting for work under the influence of drugs or alcohol
- Breach of confidentiality
- Conviction of a criminal offence
- Unsanctioned absenteeism from work during working hours without prior permission
- Gross insubordination
- Bullying and harassment, victimisation or discriminatory conduct.
6. Other Requirements
No permission is required prior to dismissing an employee.
6.2 Notification and consultation obligations
In the case of an employee is dismissed on the grounds of redundancy, an employer is obliged to give notice of redundancy to the employee. In circumstances where the employer engages in collective bargaining with a trade union, it is incumbent upon the employer to consult with the union in advance of making a final decision. Similarly, in cases of collective redundancy it is necessary for an employer to adhere to the provisions of the Protection of Employment Act 1977.
6.3 Collective dismissals
As stated above, in cases of collective redundancy it is necessary for an employer to adhere to the provisions of the Protection of Employment Act 1977. A collective dismissal will take place if within any thirty (30) day period the following numbers of employees are dismissed:
|No. of Employees to be Dismissed||Size of Organisation (Employees)|
|At least 5||21-49|
|At least 10 Employees||50-99|
|10% of the Employees||100-299|
|30 Employees||300 or more employed|
7.1 Making a claim
A claimant may present a claim of unfair dismissal to either a Workplace Adjudicator under the Acts and on appeal to the Labour Court.
Claims must be lodged with the Workplace Relations Service within six (6) months of the date of dismissal. This time limit may be extended to twelve (12) months in cases where exceptional circumstances have prevented the lodgement of the claim within the normal time limit of six (6) months.
7.2 What if the employee resigned?
A resignation is not a dismissal unless an employee can show that s/he was constructively dismissed. Constructive dismissal arises where an employee terminates his/her contract of employment, due to the conduct of the employer. However, the employer’s conduct must have been such that it was reasonable for the employee to terminate the contract.
7.3 Possible remedies
Statutory redress can take the form of any of the following:
- Re-instatement – this entitles an employee to return to their original position and to compensation for loss of earnings from the date of the dismissal to the date of re-instatement.
- Re-engagement – this entitles an employee to return to their original position but only from a particular date. This means that an employee would not be entitled to compensation for any loss of earnings.
- Compensation – an employee may be awarded a maximum of two (2) years loss of earnings as a result of being unfairly dismissed. If no loss of earnings has been suffered by the employee then the maximum a Tribunal may award is four (4) weeks remuneration. In circumstances of re-instatement, the employee is entitled to return to their original position, avail themselves of any and all benefits that may have accrued in the intervening period and receive compensation for the loss of earnings suffered during the dismissal period. Thus it may be said that in such circumstances the dismissal is treated as being void ab initio.
We note however that an Adjudication Officer will only re-instate where both parties are mutually agreeable to the possibility of re-instatement. Reinstatement is rarely used. Neither the Labour Court, nor an Adjudication Officer will force persons to work together where the relationship has irretrievably broken down.
8 Use of settlement and waiver agreements
An employee may lawfully sign an indemnity/waiver or settlement, waiving or compromising their legal rights to litigation, so long as all necessary elements of a valid contract exist, such as offer, acceptance, consideration and an intention to create legal relations. It would also be necessary for an employee to obtain independent legal advice prior to signing such agreement.