Employment LAW II - unfair dismissal acts 1977-2015 PDF

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unfair dismissal acts 1977-2015...

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EMPLOYMENT LAW II Unfair Dismissals Acts 1977-2015  These Acts prohibit dismissals that are unfair  Done for reasons that are not fair, legitimate and proportionate  A person may also be dismissed for this purpose where a fixed term contract is not renewed Dismissal can be:  Actual or  Constructive  Actual = employer terminates the employment  Constructive = due to the conduct of the employer, the employee leaves the job Criteria for making a claim = Pre-conditions = (1) Employee = contract of service; (2) Greater than or equal to 1 years service to employer; (3) Not excluded by Act e.g. Garda;Army;Public Servants. (4) Dismissal generally must occur within 6 months of making a claim.Can be extended to 12 in rare cases eg claimant had depression. Unfair dismissal: a 5 stage structure 1. Exclusions and qualifications Criteria for making a claim = Pre-conditions = (1) Employee = contract of service; (2) Greater than or equal to 1 years service to employer; (3) Not excluded by Act e.g. Garda;Army;Public Servants. (4) Dismissal generally must occur within 6 months of making a claim. Can be extended to 12 in rare cases eg claimant had depression.  Dismissal on reaching retirement age  Army and Gardaí (except under the Protected Disclosures Act, 2014)  Where the contract of employment is illegal  Some state employees  People who work outside Ireland

2. Was there a dismissal? Employee must have been dismissed Dismissal defined as (a) termination of contract by employer or (b) termination by employee because of employer’s actions to the employee (constructive dismissal); or (c) end of a fixed term contract without renewal. ** Not always easy to say dismissal e.g. f*** off”.

Once employee shows dismissal then it is presumed to be unfair and the onus is on employer to show it was fair.  S1, 1977 Act: “dismissal”, in relation to an employee, means—  (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,  (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or  (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; Duration of employment

Minimum 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

3. Was there a fair reason? UDA sets out 2 categories of reasons for dismissal – one where reasons are automatically unfair and cannot be made fair; and the second, is where the reasons might be deemed fair.  Automatically unfair reasons = membership of trade union, race, colour, sexual orientation, political opinion, age, pregnancy of employee, suing employer for other reason.  Hickey v Schram Plants Limited UD573/2004  “Dismissed pregnant workers should bring equality claims instead of unfair dismissal claims”: 

Possibly fair reasons = potentially fair reasons for the dismissal i.e.

**Capability (employee becomes mentally or physically incapable of doing work e.g. Showerings case);  Bolger v. Showerings (Ireland) Ltd [1990] E.L.R. 184 “For the employer to show that the dismissal was fair, he must show that: 1 It was the ill-health which was the reason for his dismissal; 2 That this was substantial reason;

3 That the employee received fair notices that the question of his dismissal for incapacity was being considered and 4 That the employee was afforded an opportunity of being heard.” OR Competence (employee intellectually not up to the mark; need for help/training and supervision with review of performance & warnings if the dismissal is to be fair) McDonnell v. Rooney [1992] E.L.R. 214 the EAT stated: “The test for such a dismissal has two elements: i. does the employer honestly believe that the employee is incompetent or unsuitable for the job, and, ii. are the grounds for his belief reasonable.”  O'Neill v. Bus Eireann [1990] E.L.R. 135  Murphy v. Kilkenny Marble Works UD 608/83 and Hanlon v. Smith Dolphins Barn Ltd. UD 883/82

OR Qualifications of employee (employee does not have the necessary qualifications  Daniels v. Co. Wexford Community Workshop (New Ross) Ltd [1996] E.L.R. 213  Claimant was employed by respondent company as manager of an organisation for the mildly mentally handicapped since its opening in 1979.  A consultant recommended the appointment of a manager with a third level qualification.  The claimant did not have a third level qualification  She argued she was more than qualified to run the company in view of her extensive experience and years of service in the business.  Company offered her a position under the same conditions, and at the same rates of financial remuneration, as she had previously enjoyed. The only exception was that she was not to be allowed access to the workshop floor.  Claimant refused to accept the offer of alternative employment.  Company made her redundant in February 1994.  The EAT held the claimant was fairly dismissed by reason of the redundancy as provided for in the Redundancy Payment Acts.

**Conduct of employee inside workplace and outside; can lead to reason for dismissal where it amounts to “gross misconduct” e.g. serious conviction, fraud, assault at work, fraud at work. In conduct cases, the process of investigation of the conduct and the method/process of dismissal must both be fair. Fair procedures and natural justice must be applied no matter how bad the conduct of the employee is eg. robbing employer but dismiss procedure unfair = unfair dismissal  Pacelli v. Irish Distillers Limited [2004] 15 E.L.R. 25  The EAT applied the test of fairness set out in Bunyan v. UDT (lreland) Ltd. [1982] ILRM 404 where it was stated: “The fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question

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whether or not on evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.” The EAT adopted the standard of reasonableness in Noritake (Irl) Ltd v Kenna UD 88/1983:  1. Did the company believe that the employee misconducted himself as alleged: If so,  2. Did the company have reasonable grounds to sustain that belief? If so,  3. Was the penalty of dismissal proportionate to the alleged misconduct” The EAT further stated: “The Tribunal is satisfied that the investigation by the respondent company was thorough and fair in the circumstance.” Dismissals on the ground of conduct often come down to procedural fairness. Ryan v. CIE UD 27/84 Georgopolis v. Beaumont Hospital [1994] 1 ILRM 58 O'Leary v. Eagle Star Life Assurance Company of Ireland Ltd [2003] E.L.R. 223 Coleman v. Ove Arup & Partners Ireland [2004] E.L.R. 11

**Redundancy provided employer follows fair redundancy procedure. A dismissal dressed up as a Redundancy will be an unfair dismissal case.  Section 6(4) of the UDA generally provides that a dismissal by reason of redundancy is not unfair.  Where an employee is dismissed for redundancy they can argue that the dismissal is unfair in that: he was unfairly selected for redundancy.  the redundancy was procedurally unfair  no valid redundancy ground existed – it was a sham redundancy  exceptional collective redundancy Some other substantial reason SOSR has been held to cover, among other situations, dismissals due to:  'business re-organisation'  breakdown in working relationships  demand by a third party  Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 (UKEAT)  'If it is indeed the case that a man may be judged unfit to work with children, and can lose his job in consequence, because of a conclusion reached on evidence which he does not see, by people whom he does not know and has no chance to address, applying criteria which he has no chance to challenge, and without any effective appeal, that is a deplorable state of affairs'.  Merrigan -v- Home Counties Cleaning Ireland Ltd (UD 904/1984)  Brennan –v- Bluegas Ltd. (UD 591/1993)  Manning –v- Indigo Holdings Ltd. (UD 1001/1994)

4. Did the ER act reasonably in dismissing?

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It is not enough that you have a good reason to dismiss You must also act fairly in dismissing the person Russell v. Duke of Norfolk [1949] All ER 109 "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

 Employer must act in line with an agreed disciplinary policy  Fair procedures and natural justice include:  Employer must hold a proper investigation  Ensure facts on which dismissal is based are substantiated  Allow employee to speak in their defence  Offer employee opportunity to improve performance or rectify conduct  Behave proportionately (the punishment should fit the crime)  Parsons v. Liffey Marine Ltd [1992] E.L.R. 136  Rooney v. Iron Mountain Ireland Ltd. UD638/2004  Carey v. Docket and Form International Ltd, UD302/2004

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Remedies Workplace Relations Commission Claim must be made within 6 months of dismissal Adjudication officer makes recommendation If either party wishes to do so, he or she can appeal recommendation to Labour Court Reinstatement Re-employment Compensation – up to two years’ pay depending on the amount of financial loss: ‘financial loss attributable to the dismissal’ (s7(1)(c)) (exception: Protected Disclosures Act 2014- up to 5 years gross remuneration). Sheehan v. Continental Administration Co. Ltd. (UD 858/1999), EAT stated:“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” Interim relief: s11(2)/Sch 1 Protected Disclosures Act, 2014 Dougan and Clarke v Lifeline Ambulances Ltd [2018] 29 ELR 210

Remedies for Unfair Dismissal  6 (maybe 12 if grave reason) months to make a claim  Go to Rights Commissioner first or go to

 Employment Appeals Tribunal;  Appeal within 42 days to Circuit Court 1. Re-instatement; same employer same contract OR 2. Re-engagement; same employer different contract (eg.job) 3. Compensation = 104 weeks max. SO remedy could be either 1, or 2, or 3, or 1+3, or 2+3. Unfair and Wrongful Dismissal  Employee unfairly dismissed has 2 legal remedy routes  Must choose only one i.e. Unfair Dismissal Act, claim to rights commr./E.A.T OR  Common Law action in the Courts for “wrongful dismissal” and employee must prove dismissal (a) without notice and (b) loss suffered. Damages awarded are limited to what the employee would have earned had they worked the notice. Generally used where the employee has a mixed bag of employment contract eg director and chief executive role and where Statutory notice doesnt apply. Why bring claim in the Courts?  Pre-conditions don’t apply e.g. 1 years service;  No limit on amount of damages;  Claim can be made for up to 6 years after dismissal;  Generally used where large salary or large financial losses involved....