All employers have an obligation to have in place a disciplinary procedure setting out the steps to be followed by the employer in dealing with issues of concern such as conduct and performance. The procedure must be fair and allow not only for the employer to bring issues of concern to the attention of the employee, but for the employee to defend him or herself before any decision is made as to disciplinary action. Dismissal should only take place after at least one previous warning (preferably written) and after the employee has had an opportunity to improve. In terminating the employment, the employee must be given the correct minimum notice. Failure to follow fair procedures, and to have good grounds for dismissal, may lead to a finding of unfair dismissal against the employer notwithstanding the giving of notice.
In certain circumstances of gross misconduct, the employee may be summarily dismissed, i.e. without notice.
With the exception of employments that have been terminated allegedly on grounds of the employee's trade union activity, or maternity, only employees with one year's continuous service (which includes the individual's notice entitlement, i.e. 11 months service plus one month's notice = one year's continuous service), are protected under Unfair Dismissals legislation. An employee with such service and who has been dismissed, may bring a claim to a Rights Commissioner or the Employment Appeals Tribunal ("EAT") for unfair dismissal. It is presumed that the dismissal has been unfair, leaving the employer having to prove that the dismissal was fair.
A dismissal arising from an employee's membership or proposal to join a Trade Union, the employee's religious or political opinions, civil or criminal proceedings by the employee against the employer, the race, colour, sexual orientation of the employee, or the pregnancy of the employee, or matters connected with that, or the employee's age or membership of the travelling community, are considered to be grounds of unfair dismissal. On the other hand, dismissal arising out of the capability, competence or qualifications of the employee to perform the work of the kind for which he was employed, or the conduct of the employee, or the redundancy of the employee, or the employee being unable to continue to work because to do so would be in contravention of law, is regarded as fair. It should be noted, however, that whilst these issues have all been identified in the legislation, each case should be examined on its own merits and employers should note that the onus will be upon them to prove the fairness of the dismissal both as regards reason and procedure. Where dismissal is contemplated in circumstances where it is believed to fall within one of the accepted categories, care should be taken to ensure that fair procedures, such as that outlined in the first paragraph of this section, are adhered to before making any decision to terminate the employment.
An employee succeeding in a claim of unfair dismissal may be awarded by the EAT reinstatement in the former job, or re-engagement in a suitable alternative position, or compensation. If compensation is awarded, it is limited to twice the employee's annual remuneration package, i.e. not only taking account of pay, but the value of any additional benefits provided. Whilst this represents the cap on an award of compensation, the EAT must take account of the actual financial loss suffered by the employee from the date of dismissal to the date of the hearing, and a notional value for future loss.
Decisions of the EAT may be appealed by the employer and/or the employee to the Circuit Court, and from there on a point of law to the High Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
In certain circumstances of gross misconduct, the employee may be summarily dismissed, i.e. without notice.
With the exception of employments that have been terminated allegedly on grounds of the employee's trade union activity, or maternity, only employees with one year's continuous service (which includes the individual's notice entitlement, i.e. 11 months service plus one month's notice = one year's continuous service), are protected under Unfair Dismissals legislation. An employee with such service and who has been dismissed, may bring a claim to a Rights Commissioner or the Employment Appeals Tribunal ("EAT") for unfair dismissal. It is presumed that the dismissal has been unfair, leaving the employer having to prove that the dismissal was fair.
A dismissal arising from an employee's membership or proposal to join a Trade Union, the employee's religious or political opinions, civil or criminal proceedings by the employee against the employer, the race, colour, sexual orientation of the employee, or the pregnancy of the employee, or matters connected with that, or the employee's age or membership of the travelling community, are considered to be grounds of unfair dismissal. On the other hand, dismissal arising out of the capability, competence or qualifications of the employee to perform the work of the kind for which he was employed, or the conduct of the employee, or the redundancy of the employee, or the employee being unable to continue to work because to do so would be in contravention of law, is regarded as fair. It should be noted, however, that whilst these issues have all been identified in the legislation, each case should be examined on its own merits and employers should note that the onus will be upon them to prove the fairness of the dismissal both as regards reason and procedure. Where dismissal is contemplated in circumstances where it is believed to fall within one of the accepted categories, care should be taken to ensure that fair procedures, such as that outlined in the first paragraph of this section, are adhered to before making any decision to terminate the employment.
An employee succeeding in a claim of unfair dismissal may be awarded by the EAT reinstatement in the former job, or re-engagement in a suitable alternative position, or compensation. If compensation is awarded, it is limited to twice the employee's annual remuneration package, i.e. not only taking account of pay, but the value of any additional benefits provided. Whilst this represents the cap on an award of compensation, the EAT must take account of the actual financial loss suffered by the employee from the date of dismissal to the date of the hearing, and a notional value for future loss.
Decisions of the EAT may be appealed by the employer and/or the employee to the Circuit Court, and from there on a point of law to the High Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
