Unfair Dismissals Acts 1977-2015 (Leaving Cert Business): Revision Notes
Unfair Dismissals Acts 1977-2015
What are the Unfair Dismissals Acts?
The Unfair Dismissals Acts 1977-2015 are employment laws that protect workers from losing their jobs unfairly. These Acts work alongside the original Unfair Dismissals Act 1977 and establish clear rules about when dismissing an employee is considered unfair. The Workplace Relations Commission handles complaints made under these Acts.
All dismissals are presumed to be unfair unless the employer can prove otherwise. This means the burden of proof lies with the employer to justify why they dismissed someone.
Proper procedure for dismissal
Employers must follow a specific six-step process when dismissing an employee. This ensures fairness and gives the employee opportunities to improve their performance or behaviour.
The six steps
- Counselling The employer provides advice on how the employee can improve and records this discussion on the employee's personal file. The employer clearly explains what needs to change and makes the employee aware of potential consequences.
- Formal verbal warning The employer must explain the reasons for possible dismissal to the employee. This discussion must happen in front of the employee's representative (someone acting on their behalf). The employee can respond to any allegations (unproven claims) or complaints, and everything gets recorded on their personal file.
- First written warning If there's no improvement after the verbal warning, a formal written warning follows. The employee's representative receives a copy of this warning.
- Further disciplinary action This might include a final written warning, suspension without pay, transfer to different duties, demotion (reduction to a lower position), or other appropriate disciplinary measures. The punishment should match the seriousness of the problem.
- Fair dismissal consideration If the employee follows this procedure and keeps proper records, but problems continue, dismissal may be considered fair.
- Appeal rights Employers must provide their dismissal procedures to all employees (often in an employee handbook). Employees have the right to representation at hearings, which must be impartial. The employer must give written reasons for dismissal within 14 days, and employees have the right to appeal the decision.
Following proper procedure is essential - even if an employer has valid grounds for dismissal, failure to follow the correct steps can make the dismissal unfair.
Fair dismissal
Dismissal can be considered fair if the employer demonstrates that proper procedures were followed and the dismissal falls under acceptable grounds.
Grounds for fair dismissal
Misconduct This involves improper and unacceptable behaviour. Serious misconduct might lead to immediate dismissal without notice or pay - for example, assault, drunkenness, theft, bullying, or breaking confidentiality agreements. For less serious issues, multiple minor incidents can build up to justify dismissal, though the employer must still give proper notice.
Incompetence This refers to an employee's persistent inability to perform their job to clearly explained standards. Examples include poor work performance despite training, persistent lateness or absenteeism, or failure to meet targets. The employer must have formally explained the required standards and shown that specific improvements were outlined within a reasonable timeframe, with a final warning explaining the likelihood of dismissal.
Qualifications An employer can fairly dismiss someone if they lied about their qualifications during recruitment. However, if obtaining further qualifications is a clear employment condition (such as passing accountancy exams), the employer should give the employee a reasonable opportunity to gain those qualifications.
Contravening the law If an employee cannot continue working without breaking the law, dismissal may be fair. Examples include expired work visas or drivers losing their licence for drink driving. However, employers might be expected to consider alternative solutions depending on circumstances, such as granting unpaid leave while visa renewal is sought.
Redundancy This requires economic justification or evidence that the job itself no longer exists. Examples include business closure, operational changes, or threats to business profitability. Fair procedures must be applied to show the employee hasn't been unfairly selected and won't simply be replaced.
Redundancies
Redundancies can be either voluntary or compulsory, and understanding the difference is crucial for both employers and employees.
Voluntary redundancy occurs when employers ask if any staff are willing to leave employment, often offering financial incentives during business downsizing or restructuring. Compulsory redundancy means an employee is made redundant against their will.
Under the Redundancy Payments Act 2003, eligible employees who are declared redundant receive two weeks' statutory redundancy payment for each year of service, plus one bonus week. This is calculated based on gross pay up to a maximum of €600.
Employees must have at least 104 weeks of continuous service with their employer to qualify for statutory redundancy payments.
Unfair dismissal
Certain reasons for dismissal are automatically considered unfair, regardless of procedures followed. These include:
- Trade union membership or engaging in trade union activities, whether during or outside working hours
- Religious or political opinions
- Legal proceedings against an employer where the employee is a party or witness
- Discrimination based on any of the nine protected grounds
- Pregnancy, breastfeeding or any matters connected with pregnancy or birth
- Availing of legal rights to leave entitlements such as maternity leave, adoptive leave, paternity leave, carer's leave, or parental leave
- Unfair selection for redundancy
- Making a protected disclosure (whistleblowing about possible wrongdoing at work) under the Protected Disclosures Act 2014
These grounds for dismissal are considered automatically unfair - even if an employer follows perfect procedures, dismissing someone for these reasons will still be ruled unfair.
Constructive dismissal
Constructive dismissal occurs when an employee resigns from their job due to their employer's conduct making it impossible for them to continue working there. This might involve assigning excessive workloads or bullying behaviour.
The employer's conduct may constitute a breach (failure to follow) of the employment contract or be serious enough to justify resignation.
In constructive dismissal cases, the legal situation differs significantly from regular unfair dismissal:
- The burden of proof shifts to the employee to show their resignation was justified
- Employees should follow every available complaints or grievance procedure before resigning
- A grievance procedure provides a structured framework for presenting and responding to workplace problems, including timeframes (such as employers responding to employee complaints within two weeks)
Constructive dismissal cases are often more difficult to prove because the employee must demonstrate that the employer's behaviour left them with no reasonable alternative but to resign.
Redress
When an unfair dismissal claim succeeds, one of three remedies can be awarded:
Reinstatement
The employee is treated as if they were never dismissed. They receive full payment of earnings lost between the dismissal date and the hearing date. This essentially puts them back in their original position.
Re-engagement
The employee gets their job back, but only from a particular date (such as the decision date). They won't receive compensation for lost earnings during the period between dismissal and re-engagement. This remedy often applies where the employee's behaviour contributed to the dismissal, even though the actual dismissal was unfair.
Compensation
This is the most commonly awarded remedy, providing financial compensation for losses only. Generally, the maximum compensation available is two years' pay.
The Workplace Relations Commission or Labour Court will consider factors such as the employee's length of service, age, and efforts to find alternative employment when determining the appropriate remedy.
Key Points to Remember:
- All dismissals are assumed unfair unless employers can prove otherwise - the burden of proof lies with the employer
- Employers must follow a proper six-step procedure including counselling, warnings, and documentation before dismissing someone fairly
- Fair dismissal requires valid grounds (misconduct, incompetence, qualifications, law contravention, or redundancy) plus proper procedures
- Certain reasons for dismissal are automatically unfair, including trade union membership, pregnancy, discrimination, and whistleblowing
- Constructive dismissal occurs when employees resign due to impossible working conditions created by their employer
- Three remedies are available for successful claims: reinstatement, re-engagement, or compensation