Dismissal – termination of employment
Unfair Dismissals Acts 1977-2001
Aggrieved employees have a choice of legal remedy:
[1] an action for wrongful dismissal in the civil courts where breach ofcontract or breach of constitutional rights is alleged. There is a 6-year limitation period and damages are unlimited;
or
[2] a claim within 6 months (12 months in “exceptional circumstances”)of the date of dismissal to the Employment Appeals Tribunal or Rights Commissioner under the Unfair Dismissals Acts 1977-2001.
Redress for unfair dismissal under the Unfair Dismissals Acts apply to employees who:
• have been dismissed or can prove that the employer’s conduct was so unreasonable that resignation was justified
• have one year’s continuous service. This service is not necessary where dismissal is on grounds of pregnancy or related matters or trade union activity
• are between 16 and 66 years of age
• are employed by or through employment agencies or directly by the employer
Presumption of unfair dismissal:
Once it is accepted that the employee was dismissed then the onus is on the employer to prove that the dismissal was not unfair.
Certain specific grounds for dismissal are also deemed to be unfair:
• trade union membership/activity
• pregnancy or matters related
• exercising statutory maternity rights
• religious or political opinions
• age
• sexual orientation
• membership of the travelling community .
• taking legal action against the employer
Grounds substantially justifying dismissal:
• Capability, competence or qualification I conduct
• Redundancy provided selection criteria and procedures are fair
• Other substantial reasons
• Fixed term contracts and fixed purpose contracts (with certain exceptions).
Disciplinary Procedures under the Unfair Dismissals Acts
There is a legal obligation on all employers to supply all employees, not later than 28 days after commencing employment, with written procedures that the employer will observe before dismissing an employee. Any changes to the procedure must be notified to the employee within 28 days of the change being made.
The use of disciplinary procedures is strongly recommended to employers where an employee’s conduct, attendance or performance is of concern. Failure to use or comply with procedures, of itself, may render the dismissal unfair.
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. The test is: what would a reasonable employer do? If appropriate, the employer should notify the employee of any shortcomings, suggest improvements and give a period of time in which to make the improvements.
The employee should also be notified of the consequence of not making the improvements e.g. dismissal might be considered. In cases of serious misconduct, it may be appropriate to move to a later stage of the procedure much more quickly.If requested, an employer must give the reason(s) for dismissal in writing within 14 days of the request.
See Labour Relations Commission website: http://www.lrc.ie/
Procedures and Enforcement:
A claim under the Unfair Dismissals Acts may be brought, in writing, to a Rights Commissioner or Employment Appeals Tribunal within 6 months of the date of any contravention (twelve months in “exceptional circumstances”).
Redress:
• reinstatement, or
• re-engagement, or
• compensation to a maximum ceiling of 2 years’ remuneration.*
*’Remuneration’ includes salary, benefits in kind (car, VHI, lodgings etc.) and employers pension contributions.
Awards of compensation are usually based on the actual financial loss of the employee however in cases of no loss e.g. where the employee is immediately employed at the same salary the Tribunal has discretion to award up to four weeks remuneration.