My Single Best Tip for Employees

 

stressed employee

Are you an employee?

Are you experiencing difficulties in work?

Employees contact me every day with a wide range of problems.

These can include issues to do with bullying, rest breaks, disputes about statutory leave entitlements, harassment, working extra hours and not getting paid, unfair reprimands, threats-implied or express-of dismissal, not being given a written contract of employment, and so on.

One question I always ask, though, is “when did you commence employment?”

Because the protection that you get from the Unfair Dismissals Act, 1977 requires you to have 12 months’ continuous service:

 

2.—(1) This Act shall not apply in relation to any of the following persons:
(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

There are exceptions to this one year’s continuous service requirement, for example a pregnancy related dismissal, a protected disclosure related dismissal, or a dismissal connected with trade union membership.

Without the required 12 months’ continuous employment you are vulnerable to being dismissed with little or no recourse to bring a claim for unfair dismissal. And quitting and bringing a claim for constructive dismissal is not open to you either.

I have heard some appalling stories from employees, stories of extremely poor or unfair treatment they have suffered.

Stories of people leaving a job to take up employment with another employer on the strength of attractive, but illusory, promises made by a new employer.

But if it does not work out, and the employee does not have 12 months’ continuous service, the options to right the wrong or pursue a claim are exceptionally limited.

My best tip for employees, then?

My single best tip for employees is to do your very best to get 12 months’ service under your belt in the job.

You may have complaints, problems, grievances in the first 10/11 months but you have a choice to make in relation to raising those grievances-do you do it in the first 12 months and raise your head above the parapet?

Or do you bite your tongue and wait until a year has elapsed?

Sometimes, you can win a battle and lose the war.

If you are suffering badly from bullying or harassment in the workplace it will be very difficult to endure that simply to get 12 months’ employment, and I am not recommending you do.

You must look after your health and wellbeing as your first priority. Your health truly is your wealth.

But if you have a minor grievance, or grievances, with aspects of your job, consider whether you can endure until you have 12 months’ employment behind you, and then ventilate your issues through the appropriate channels internally. These policies and procedures should be set out in the staff handbook.

Because if you raise a lot of grievances before the one year mark, you run the risk of the employer deciding you are not “the right fit” for the company, and having your employment terminated without being able to use the Unfair Dismissals Act, 1977, and related legislation to vindicate your rights.

You may also be on probation, which allows the employer to terminate you for good, bad, or no reason.

In fact, there are circumstances where I would advise the employer not to give any reason for a termination.

Don’t get me wrong: there are plenty of employment related acts on the statute books which do not require you to have a minimum period of employment.

For example, the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act,1994, the Protected Disclosures Act, 2014 etc.

But not being able to use the protection of the Unfair Dismissals Act, 1977 is a huge setback if you have lost your job. Not only does it provide for up to two years’ salary as compensation, it also provides for reinstatement or reengagement in the employment as potential outcomes in a successful claim.

Bonus Tip for Employees

My bonus tip for you is not to resign from your job hastily or without taking legal advice.

If you resign you may be able to bring a claim for constructive dismissal.

But this is a much harder case to win than one for unfair dismissal because the burden of proof to win your case shifts from the employer to you as employee.

If you resign too quickly you are also ruling out the possibility of a negotiated exit and getting a suitable reference. The employer, once he takes advice, may be happy to give you a reference and some form of settlement payment in return for your undertaking, by way of a signed agreement, not to pursue any claims arising from the employment.

Conclusion

Take advice from someone who has a good understanding and knowledge of employment law before you make rash decisions.

Because you do not want to find out after the fact that your legal options are extremely limited.

How to Legally Dismiss an Employee

how to dismiss an employee

Are you an employer?

Are you one of those people who believe that employment law in Ireland is stacked in favour of the employee?

That you can’t win, no matter what you do?

You will regularly hear of, what appear to be, eye watering awards to employees for unfair dismissal.

You may be surprised to hear that you can, in fact, legally terminate the employment of an employee.

Are you an employee who is concerned about losing your job?

Do you want to know what the grounds for a fair dismissal are?

Let’s take a look.

Probation

When an employee is on probation there is little difficulty in terminating the employment contract. The whole purpose of the probationary period is to allow the parties, especially the employer, to see whether the employee is the “right fit” for the organisation.

You can learn more about employees on probation in advice for employees on probation but the bottom line is

  1. The law recognises a common law right for an employer to terminate an employment contract for good, bad, or no reason;
  2. The most powerful protection given to employees is given in legislation such as Unfair Dismissal Acts, 1977-2005, but to be able to avail of this protection the employee must have 12 months’ service done; this will not be the case on probation as the probation period cannot exceed 12 months.

Therefore, it’s critically important that the employer has well drafted contracts in place with a comprehensive probation period.

Fair Dismissals

The law recognises circumstances where a dismissal can be deemed to be a fair dismissal, as opposed to an unfair dismissal.

Section 6 (4) of the Unfair Dismissals Act, 1977 provides:

(4) Without prejudice to the generality of subsection (1) of this section, 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:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

 

Let’s take a closer look at the grounds for dismissal provided for in legislation.

Capability

Capability covers issues such as

  • Absence from the workplace
  • Absence through Illness
  • Persistently poor time-keeping

A dismissal on any of these grounds, though, should be well supported with documentary evidence justifying the termination.

This evidence would range from time-keeping records to absenteeism records to medical reports.

There is also different approaches to be taken to long term illness versus intermittent short term sick days. How to manage sickness related absence elsewhere on this site should help.

Competence

Competence refers to the standards required of you to do the job you were hired to do.

Before a dismissal on the grounds of lack of competence the employer should

  1. Set out the employee’s shortcomings
  2. Point out the required improvements
  3. Give time to make the necessary improvement
  4. Warn of the possibility of dismissal.

Monitoring the employee’s performance can be time consuming, but this falls under the employee’s general entitlement fair procedures and natural justice before being dismissed.

Learn more about performance management and performance improvement plans.

Conduct

Conduct, or misconduct, covers a wide range of behaviour.

Gross misconduct can justify summary dismissal, while a series of lesser misconducts can justify termination too. But fair procedures and natural justice should be shown to the employee, unless gross misconduct justifies summary (immediate) dismissal.

Qualifications

Dismissal on this ground can arise in 2 ways:

  • The employee has lied at interview or in the application process about his/her qualifications
  • A precondition in the offer of employment has not been complied with.

Redundancy

Redundancy is a defence to a claim for unfair dismissal.

There are 5 different situations defined in the legislation as being instances of redundancy. Learn more about non collective redundancy here.

It’s critical for the employer that the redundancy is a genuine one, that is the role is being eliminated, and this cannot be used as a way of getting rid of someone for reasons unconnected to redundancy.

Employers also need to ensure fair selection procedures in choosing what role will be made redundant.

If the redundancy is not genuine, or the selection for redundancy is unfair, a claim for unfair dismissal may be successful.

Illegality

This can arise if, for example, an employee needs a driving licence to discharge his duties and loses the licence, and their continued employment would lead to a breach of the law.

However, the employer should look to see is there alternative employment that can be offered, before dismissing on this ground.

Other substantial grounds

Section 6(6) of the Unfair Dismissals act, 1977 states:

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

It’s not clear what “other substantial grounds” will successfully withstand a claim for unfair dismissal. But if you are an employer and trying to rely on this one, as opposed to the other grounds outlined above, you are scraping the bottom of the barrel.

Conclusion

If you are an employer you can dismiss an employee. But you must have substantial grounds for doing so:

6.—(1) Subject to the provisions of this section, 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. (Section 6 Unfair Dismissals Act, 1977).

And you generally must afford fair procedures and natural justice to the employee in arriving at the decision.

The Zen Guide to Unfair Dismissal Claims

unfair dismissal claims

There are 4 broad categories of unfair dismissal claims:

  1. You have been unfairly dismissed and you have 12 months’ service

You must be over the age of 16 and have at least 12 months’ continuous service. The relevant section and act is section 6 Unfair Dismissals Act, 1977.

Section 2 of Unfair Dismissals Act, 1977 sets out the employees who are excluded from the protection of the act. These include members of the defence forces, members of an Garda Siochana, and close family members.

Section 3 excludes employees on probation.

12 Months’ Continuous Service Requirement

The requirement for 12 months’ continuous service does not apply if the dismissal is as a result of any of the following:

  • The employee’s trade union membership
  • The employee’s pregnancy, breastfeeding, or giving birth
  • Exercising any protective leave rights
  • Exercising rights in relation to parental leave, force majeure leave, carer’s leave, adoptive leave
  • The Protected Disclosures Act, 2014 (whistleblowing protection).

 

  1. You have been unfairly dismissed and don’t have 12 months’ service

Refer above for circumstances where you do not need 12 months’ service.

Industrial Relations Acts

Also, you can refer a dispute to the WRC for adjudication under the Industrial Relations Acts. However, if the other party objects to this then the adjudication cannot take place.

  1. You were forced to quit you job because of the conditions at work, or the conduct of your employer or work colleagues (you were in the job for at least 12 months)

This is a constructive dismissal situation. You can learn more about what is constructive dismissal here, and the main tests for constructive dismissal here.

Constructive dismissal cases are hard ones to win. My advice is to take legal advice before you hand in your notice.

  1. You were forced to quit but don’t have 12 months’ service

The same principles apply here as referred to above; generally, you need 12 months’ service to be able to avail of the unfair dismissals legislation.

 

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Financial Compensation in Unfair Dismissal Cases-What You Should Know

financial loss unfair dismissal

Are you involved in an unfair dismissal case?

Are you confused about the amount of financial compensation that can be awarded?

Unfair dismissal legislation provides for 3 types of remedies for the successful employee:

  1. reinstatement to the position he held before the dismissal
  2. re-engagement involves the employee being given the same position or an alternative role
  3. compensation.

Compensation in Unfair Dismissal Cases

Compensation is the most common remedy.

Under unfair dismissal legislation the maximum award is 104 weeks (2 years) remuneration.

Remuneration is not just basic salary. It also includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Remuneration, therefore, includes share options, VHI benefits, employer’s contribution to the pension scheme, company car, bonuses, commissions, and any other benefit provided to the employee.

Compensation can only be paid, though, on the basis of the actual loss incurred. Therefore, if an employee gets an equivalent job 3 months after dismissal his actual loss will be 3 months’ salary.

This compensation needs to be distinguished from damages that a person would be entitled to in, for example, a personal injury claim.

However, future loss can also be taken into account, as set out in section 7 of the Unfair Dismissals act, 1977:

financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

Assessment of Loss

Employees have a duty to mitigate their loss; this means that they must try to get new employment as quickly as possible.

An employee in an unfair dismissal claim will have to show the efforts she made in trying to get a new job. If you are an employee, ensure that you retain all application letters/emails and responses from employers.

Compensation can be reduced or not awarded if you have not made efforts to reduce your loss.

If you are not able to work for medical reasons you may not be entitled to compensation as your loss will be nil.

However, the Unfair Dismissals (Amendment) Act, 1993 provides that an employee may be awarded up to 4 weeks’ remuneration where he has obtained a new job and has incurred no financial loss.

Social welfare payments received are not taken into account when calculating the employee’s financial loss. (See section 6 Unfair Dismissals (Amendment) Act, 1993)

The financial loss is based on net, not gross figures, as the gross figure is not a loss to the employee.

Taxation

All payments relating to the termination of employment are subject to taxation. This includes payments as part of a settlement agreement, or an ex gratia payment, or an award from the Workplace Relations Commission, or other employment related body/tribunal, or civil Courts.

The employee is entitled to

  1. a basic tax exemption on each occasion of the termination of his employment and
  2. a rebate for each full year of service.

The employee also has an additional allowance once every 10 years. She also gets further tax relief in respect of termination payments.

If you are an employee you should speak to an accountant or obtain specialist tax advice about the taxation of termination payments. You can also check out what the Revenue Commissioners have to say.

Suspected Gross Misconduct-2 Vital Points About Suspending the Employee

gross misconduct

Where the employer suspects an employee may be guilty of gross misconduct he should suspend the employee on full pay in order to carry out an investigation.

There are 2 important things about suspending the employee in these circumstances:

1.      The suspension should be carried out as soon as possible

The reason for this is simple: if the employer is alleging the misconduct is actually serious and “gross” he would weaken his position significantly if he leaves the employee in the workplace.

The Employment Appeals Tribunal (EAT) held in a case involving the alleged theft by a shop worker of money from the shop till that the failure by the employer to suspend the employee immediately, and let him continue to work on the Saturday prior to the disciplinary meeting on Monday:

“it was noted by the Tribunal that while the respondent stated that they considered this, a very serious matter, the claimant was allowed to work for them on the Saturday prior to the meeting on the Monday.”

This case- Duffy -v- Hugh McAvoy T/A ‘Talk To Me’ (UD 1048/2009)-saw the employee winning €17,000 for unfair dismissal.

The employee should be told quite clearly that the suspension is not an adverse finding against him and that this is a precautionary measure, and the suspension will only last until he investigation has been completed and the employer has made a decision.

2.      The employee should be suspended with pay

If the suspension is not an adverse finding against the employee, and it is merely “precautionary” and to allow an investigation be carried out, then it follows that as the employee is innocent he/she is entitled to be paid, in accordance with his contract of employment.

This can be hard for employers to swallow, particularly where they feel that the evidence is overwhelming. But carrying out an investigation with a pre-ordained outcome in mind is a dangerous, and easy, trap for an employer to fall into.

Suspending without pay

Disciplinary procedures in the workplace are intended to be corrective rather than punitive-suspending an employee without pay is clearly a disciplinary, punitive measure.

It would also make it difficult for the employer to take any further step such as issuing a warning as the employer would run the risk of imposing an excessive and disproportionate penalty. Not being able to issue a warning would then mean you were no further on through the disciplinary procedure with an employee who is suspected of gross misconduct.

For these reasons, suspending an employee without pay is not recommended to employers.

You may also be interested in Fair Procedures in Dismissing an Employee.