Dismissal

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General

The protections in Ireland in relation to unfair dismissal and redundancy are broadly similar to those in the United Kingdom. The qualification period for unfair dismissal remains one year. Two years service is required for a redundancy payment.

Complaints of wrongful dismissal may be taken in the courts or to the Workplace Relations Commission, formerly the Employment Appeals Tribunal. Court remedies are useful only in the unusual circumstances where the dismissal can be shown to be a serious breach of contract. More commonly the preferable route is to claim that the dismissal is procedurally or substantively unfair.

Notice

Minimum notice legislation provides that employees who have continuous service with the employer of at least 13 weeks are entitled to a minimum period of notice prior to dismissal. This covers part-time employees. In broad terms, the periods of notice are as follows

  • three months to 2 years service one week
  • two years to 5 years service two weeks
  • five years to 10 years service four weeks
  • 10 years to 15 years service six weeks
  • more than 15 years service eight weeks

Employees must give at least one weeks notice where they have been employed for more than 13 weeks. The above is the statutory minimum so that the contract may make provision for longer periods either on the part of the employer and /or employee.

An employer’s contract may be terminated without the statutory minimum notice or pay in lieu in the very unusual cases where there is very serious misconduct such as to justify instant dismissal.

Redundancy

Redundancy payments must be made to an employee who has been made redundant,  laid off or put on short time for a certain period. Two years’ service is required. Broadly speaking the lump sum to which the employee is entitled on redundancy is two weeks pay for every year of service, subject to a statutory ceiling together with a bonus weeks’ gross pay subject to the statutory ceiling.

The former rebates from the Social Insurance Fund were discontinued in 2013. A complaint may be made to the Department if an employer is not able to pay the statutory redundancy lump sum. The lump sum may be paid by the Department if the employer is insolvent.

There are provisions in respect of collective redundancy which are broadly similar to those in the UK being derived from EU legislation. An employer who proposes to undertake collective redundancies must give employee representatives information regarding the proposals at least 30 days before the first dismissal takes place. There are requirements for consultation. The Department of Jobs Enterprise and innovation must be given advance notice.

A collective redundancy is broadly the following numbers of redundancies over a 30 day period

  • five or more persons where there are 20 to 50 employees
  • 10 or more persons where there are 50 to 99 employees
  • 10% of the employees at the establishment normally employing between 100 and 299 employees
  • At least 30 persons at establishments with 300 or more employees

Insolvency & Termination

The insolvency payments legislation provides limited statutory cover for certain employee rights in the event of an employer’s insolvency. Employee rights have a very high level of priority in personal or corporate insolvency. However, it may be that all assets are secured or that there are no assets or funds available to pay the minimum statutory sums.

The scheme covers wages holiday pay, sick pay and pay in lieu of notice. It also covers payments on foot of the adjudication of unfair dismissal or breach of equality maternity adoptive leave or industrial relations legislation. There is a limit of €600 per week under the scheme. The scheme also covers contributions to pension schemes which have been deducted but not paid as well as employer pension contributions subject to limits.

Unfair Dismissal

The unfair dismissals legislation effectively creates a right not to be unfairly dismissed. The entitlement applies after one years’ service. The requirement for one-year services does not apply to dismissal due to

  • pregnancy
  • the exercise of parental rights
  • exercising trade union activity outside working hours or during permitted hours
  • making a protected disclosure
  • exercising carers rights
  • exercising rights under minimum wage legislation

The Workplace Relations Commission machinery whether mediation or ultimately adjudication is used to determine the claim.

Scope

There must be a dismissal. This is almost always termination of the employment contract by the employer. In principle, constructive dismissal is allowed where the employer has committed a serious and fundamental breach of the employment contract such as to justify the employee in immediately resigning. This is rarely available and an employee is always better advised to resort to dispute resolution mechanisms.

The legislation applies to most employees i.e. persons with a contract of service. It does not apply to independent contractors. There is a range of other less commonly encountered exclusions.

The legislation applies to persons employed through employment agencies. The agency is generally deemed the employer for this purpose. There is an exception in the legislation for a genuine fixed term or fixed purpose contracts which expire or cease at their natural termination. A series of fixed-term contracts with a break of less than three months may be aggregated under anti-avoidance provisions to continue to confer the benefit of the legislation on the employee.

Grounds

A dismissal is presumed to be unfair. The employer must show there are substantial grounds justifying dismissal based on one or more of the following

  • capability competence or qualifications of the employee
  • the employee’s conduct
  • redundancy
  • breach of a statutory requirement by the continuance of employment

Certain dismissals are deemed automatically unfair where the dismissal is shown to have been mainly or wholly for one of the following reasons

  • equality grounds such as age race sexual orientation et cetera
  • pregnancy
  • the purported exercise of family rights
  • trade union activities
  • whistleblowing participation in proceedings
  • religious or political opinions exercise of parental and like rights
  • unfair selection for redundancy
  • the exercise of rights under national minimum wage legislation

Remedies

The Workplace Relations Commission may order compensation, reinstatement or engagement. Reinstatement is a resumption in the same position. Re-engagement in an alternative position on terms which are considered reasonable.

By far the most common remedy is financial compensation. This must not exceed two years pay although it may be up to 5 years in the case of dismissals due to making protected disclosures. The employee must take steps to reduce his or her loss. Account is taken of whether there has been a failure to comply with the current practice of grievance and disciplinary procedures. Where there is no financial loss, up to 4 weeks pay may be awarded by way of compensation.

In practice, many unfair dismissals are based on procedural unfairness. Even where there are grounds for dismissal there are very strong principles whereby an employee should usually be given the opportunity to remedy any failing where possible. Generally, hearings and enquiries are required in relation to prospective or other sanctions related to conduct, capability or competence.

An employer may be the subject to an award for unfair dismissal by reason of failure to follow the requisite procedure, even where substantive grounds for dismissal exist. The compensation would be correspondingly lower than might be the case if the substantive grounds did not exist.

A complaint of unfair dismissal or redundancy is made to the Workplace Relations Commission. The onus is on the employer in both cases to rebut the claim and justify dismissal.