Automatically Unfair Dismissals

In general, the Unfair Dismissals Acts, 1977 – 2016, provide that 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.

The purpose of the Acts is to protect employees from being unfairly dismissed from their employment by laying down criteria by which dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unfair.

To be an employee, you must be working for an employer under a ‘contract of service’.  This is an agreement between two parties where one party (the employee) provides a service for the other party (the employer) for a monetary reward also known as a contract of employment.

Persons engaged through employment agencies are covered by the scope of the legislation.
For the purpose of the Unfair Dismissals Act the party (end user) hiring the individual from the employment agency is deemed to be the employer.

What is an Unfair Dismissal?

The Acts provide for a number of grounds under which a dismissal may be considered unfair:

• Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours
• Religious or political opinions
• The employee having made a protected disclosure
• Legal proceedings against an employer where an employee is a party or a witness
• Race, colour, sexual orientation, age, or membership of the Traveller community
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
• Availing of rights under legislation to maternity leave, adoptive leave, carer’s leave, parental or force majeure leave
• Unfair selection for redundancy

The dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following

• The capability, competence or qualifications of the employee for performing work of the kind which s/he was employed by the employer to do
• The conduct of the employee
• The redundancy of the employee
• The employee being unable to work or continue to work in the position which s/he held without contravention (by employee or employer) of a duty or restriction imposed by or under any statute or instrument made under statute

Redundancy is considered a fair reason for dismissal. However, if you consider you were unfairly selected or that there was no genuine need for your redundancy you may refer a complaint to the WRC for unfair dismissal.

Who does the Act apply to?

The Act applies to employees over the age of 16 years with at least 12 months continuous service.

The Act does not apply to the following persons:

1. Close relatives of the employer who are living in the same household
2. Members of An Garda Síochána and the Defence Forces
3. Statutory apprentices dismissed within six months after the commencement of the apprenticeship or in the month following the end of their apprenticeship (s.4 Unfair Dismissals Act,1977).
4. An employee who has reached normal retiring age for employees of the same employer in similar employment.
5. A person employed by or under the State who was dismissed by the Government
6. A chief executive of a local authority (Section 144 Local Government Reform Act 2014)
7. The Director General of the Health Service Executive (Section 17 Health Act 2004)
8. The chief executive officer of the Child and Family Agency (Section 28 Child and Family Agency Act 2013)

The Act shall not apply to a dismissal where the employment was under a contract of employment for a fixed term or specified purpose and the dismissal occurred at the expiry of the term or the cesser of the purpose without its being renewed under the same contract.  This is if the contract of employment specifies that the Unfair Dismissals Act does not apply to the expiry of the contract.

The Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when she/he is on probation or undergoing training once the contract in writing states that the duration of the probation or training is one year or less.

Length of Service

You must have at least twelve months continuous service to claim for unfair dismissal. Continuous service is broken if the employer dismisses you or if you have previously terminated your employment

Cases where one year’s continuous service does not apply:

The requirement of one year’s continuous service does not apply where the dismissal results from:

1. an employee’s pregnancy, giving birth or breastfeeding or any matters connected therewith
2. the exercise or proposed exercise by an employee of a right under the Maternity Protection Act, 1994 & 2004
3. the exercise or contemplated exercise by an employee of the rights to adoptive leave, or additional adoptive leave under the Adoptive Leave Act 1995 & 2005
4. the exercise or proposed exercise by the employee of the right to parental leave, parent’s leave or force majeure leave under and in accordance with the Parental Leave Act, 1998, 2006 & 2019, and the Parent’s Leave and Benefit Act 2019
5. an employee’s entitlements, future entitlements, exercise or proposed exercise of rights under the National Minimum Wage Act 2000
6. an employee’s trade union membership or activities
7. the exercise or proposed exercise by the employee of the right to carer’s leave under and in accordance with the Carer’s Leave Act, 2001
8. an employee employed under a statutory apprenticeship and the dismissal takes place after 6 months of the start date of the apprenticeship, but not in the month following the end of the apprenticeship.

If you have less than twelve months continuous service and you believe you have been unfairly dismissed by your employer, you may take a claim under Section 20(1) of the Industrial Relations Act 1969. It is important to note that the Court makes a recommendation, this is not legally binding on the employer.

Under Section 98 (a) of the Employment Equality Act 1998, it is an offence if an employee is dismissed for exercising their rights in relation to discrimination, they have experienced under the nine grounds of discrimination

• Gender
• Civil status
• Family status
• Age
• Disability
• Religious belief
• Race
• Sexual orientation
• Membership of the Traveller community

Disciplinary hearings and grievance procedure compliance is essential for employers and managers within employment law. It is important to ensure that the necessary procedures that is place, and that it has been issued to and signed off by all employees, in order to guarantee that you can correctly manage disciplinary issues in the workplace.

Current employment law legislation provides that all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Having a formal procedure in place will remove any ambiguity or accusations of unfair treatment as, when correctly applied, a disciplinary and grievance procedure allows for all employees to receive the same treatment if a disciplinary issue arises.

Fair Procedures

Section 6 (7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:

(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B) the extent, if any, of the compliance or failure in comply with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

As the employers own disciplinary procedures may be more extensive than the procedures in the Code of Practice, it will be looked to first.

The Rules of Natural Justice for Disciplinary Hearings

Employers who commence disciplinary proceedings against their employees must follow the rules of natural justice. The employee must:

• Be made fully aware of any formal allegation made against them
• Be afforded the opportunity to reply to any formal allegation made against them
• Be afforded the right to representation throughout the disciplinary process
• Receive the right to a full and objective investigation of the allegation
• Receive the right of appeal

Fair Procedures in Disciplinary Hearings Legal Case

Recently, the Employment Appeals Tribunal criticised Dunnes Stores for disregarding the rules of natural justice in the manner they conducted their disciplinary process as they did not provide a checkout operator with an appeal hearing despite her request for one, awarding her €26,000 for being unfairly dismissed. This highlights the importance of adhering to the rules of natural justice.

In another recent case an employee was awarded €1,500 for the unfair dismissal, and a further €2,663 in lieu of four weeks’ minimum notice.

The Tribunal found that the investigative and disciplinary processes in the case “were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed.” The exclusion of the employee’s union representative and the denial to him of his representative of choice during the process was unfair and a fundamental breach of his contractual entitlements. The Tribunal could not disregard these fundamental flaws, particularly as the firm had the advice of an external consultant in employment procedures available to it.

The recent case of Castolin Eutectic Ireland Limited V Kita [2018] involved an allegation from the complainant that they had been unfairly dismissed following a workplace dispute. During the incident the complainant requested to speak with the operations manager and told another supervisor within the company that they did not trust their supervisor. Following this incident the complainant had taken a number of day’s sick leave. Upon their return to work the complainant was questioned by their manager regarding the incident and they were handed a letter requesting their attendance at an investigation the next day. The complainant was not provided with a copy of the complaint lodged against them and they were denied access to witnesses and notes of the investigation meeting. This was not disputed by the respondent, however, they argued that the complainant’s conduct had amounted to a gross insubordination and thus justified the complainant’s dismissal. The dismissal was upheld by the WRC who held that a gross insubordination had been found.

The Labour Court reversed the decision of the WRC on appeal. The Labour Court held that while the complainant had not followed reasonable instruction, their conduct did not amount to gross insubordination and that the lack of procedural fairness afforded to them further contributed to their dismissal being unfair. No public remedy or re-reengagement was issued in this case; rather the complainant was awarded €10,000 in compensation. This case illustrates the importance of consistency in the treatment of employees pertaining to disciplinary matters and dismissals.

 

Grievances During the Disciplinary Process

Often, during the course of an investigation or disciplinary process, an employee raises a grievance either in relation to the process itself or in relation to some other related or unrelated matter. In this scenario, the first step is for employers to look to their grievance and disciplinary procedure for guidance regarding the policy and custom and practice approach to this issue.

While the UK Code of Practice does not bind Irish employers, in the absence of any Irish legislative or case law guidance on the subject, t is helpful to look at the UK position for some guidance on best practice. The ACAS Code of Practice 2009 provides some guidance on what to do in a similar situation in Ireland. Section 46 states:

“Overlapping grievance and disciplinary cases…where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently”.

It is clear that there is no legal requirement to suspend a disciplinary process if a grievance has been raised.

However, where the grievance relates to the process of the disciplinary procedure, it could threaten the integrity of the disciplinary procedure. The employer should consider whether the disciplinary procedure should be suspended for a short period of time while the grievance is considered.

The 2009 ACAS Guide suggests that a grievance raised in respect of fair procedures may require an employer to consider suspending the disciplinary process where: