The Unfair Dismissals Act

Question 1

Unfair dismissals acts 1977-2021

Answer 1

Dismissal is when an employer removes an employee from their job. The unfair dismissals acts were introduced to prevent employees from being dismissed from their roles from unfair reasons. The acts apply to employees with one years continuous employment with the employer. Under the act all dismissals are deemed to be unfair and the burden of truth lies with the employer, that is they must prove that the dismissal was fair.

Question 2

Redundancy

Answer 2

The employer can dismiss an employee if a genuine redundancy situation exists, there is an economic reason for the redundancy. For example, sales are falling in the business. Employees must be chosen fairly for redundancy, e.g. last in first out.

Question 3

Incompetence

Answer 3

The employee can be dismissed if they do not perform their role to an agreed appropriate standard. For example, poor performance or failure to reach agreed targets. A waiter at a restaurant who constantly gets customer orders wrong and is always overcharging customers may be fairly dismissed

Question 4

Qualifications

Answer 4

If the employee does not have relevant qualifications for performing their role and misled the employer when she applied for the job can be dismissed. An employee can also be dismissed fairly where the employer made continued employment conditional upon the employee obtaining specific qualification and the employee being given a reasonable opportunity to do so. Example: an employee failing to pass professional accounting exams within an agreed time frame, that would enable them to work as a qualified accountant.

Question 5

Employee misconduct

Answer 5

Misconduct means unacceptable behaviour of an employee in the workplace. Misconduct can relate to a number of minor incidents that when viewed together can warrant dismissal. Example: persistent lateness or absenteeism. Gross misconduct may give rise to instant dismissal without notice or pay in lieu of notice. Example: drunkenness or assault.

Question 6

Legal reasons

Answer 6

An employee can be dismissed if continuing their employment would break the law. Example: a non EU employee who does not possess a valid work visa to work in Ireland.

Question 7

Steps of fair dismissal (in order)

Answer 7

1. Counsel employee
2. Formal verbal warning
3. First written warning
4. Second written warning (optional)
5. Final written warning
6. Suspension
7. Dismissal

Right of appeal

Question 8

Counsel employee

Answer 8

This pre-disciplinary procedure should be carried out to ensure the employee knows the standards expected, and should be carried out by a supervisor / manager. They are made aware of the consequences if they do not meet these standards. If this informal counselling does not bring about the required improvement the formal disciplinary will be invoked.

Question 9

Formal verbal warning

Answer 9

This would involve a meeting with the employee at which the employee could bring a colleague or other representative. At the meeting the employee should be advised of what the problem is and invite to respond and explain his/her actions. Following the meeting a confirmatory letter should be given a verbal / oral warning. It should also contain the improvements required of the employee in respect of the behaviour which led to the warning and the timeframe within which the improvement must be made

Question 10

First written warning

Answer 10

If there is no change to the situation, a formal written warning follows the oral warning. A copy will be given to the employees representative. This may be followed by a final written warning, suspension without pay, transfer to another task or section of the enterprise, demotion, some other appropriate disciplinary action short of dismissal and finally dismissal.

Question 11

Final written warning

Answer 11

This warning letter will be the final one prior to dismissal so it is important that it is well drafted as it will be scrutinised closely by the employee and probably his/her legal advisor. This letter should only refer to the matters which have been the subject of the disciplinary procedure to date, not other matters which have never been put to the employee.

Question 12

Suspension

Answer 12

The employee is asked not to attend work or engage in any work but will be paid pending a further investigation

Question 13

Dismissal

Answer 13

The employer removes the employee from their job as their performance has not improved to the required standard, despite additional training and support from the business

Question 14

Right of appeal

Answer 14

The employee has the right to a fair and impartial determination of the issues concerned, taking into account any representation made by, or on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances.

Question 15

In the case of gross misconduct the following procedures may apply:

Answer 15

1. Suspension
2. Investigation
3. Sanction and appeal
4. Employees right of appeal

Question 16

Suspension (gross misconduct)

Answer 16

The employee is on paid leave pending the outcome of an investigation

Question 17

Investigation (gross misconduct)

Answer 17

A hearing or investigation is carried out. The employee is entitled to representation.

Question 18

Sanction and appeal (gross misconduct)

Answer 18

Following the hearing an employee may be sanctioned and can appeal any decision. They can also take legal action to pause the process.

Question 19

Employees right of appeal (gross misconduct)

Answer 19

The employee has the right to be represented at a hearing into his/her dismissal. The hearing must be fair and impartial

Question 20

Unfair dismissal

Answer 20

There are a number of ways in which the dismissal of an employee can be deemed unfair. These include dismissal based on age, religious or political beliefs, pregnancy, sexual orientation, race, legal proceedings against an employer, availing of rights, unfair selection for redundancy, whistle blowing, membership of the travelling community.

Question 21

Redress for unfair dismissal

Answer 21

1. Reinstatement
2. Re engagement
3. Compensation

Question 22

Reinstatement

Answer 22

The employee gets their job back, is entitled to back pay from the date of dismissal, entitled to any improvements in conditions of employment while they were dismissed. This redress is rarely used.

Question 23

Re engagement

Answer 23

The employee may get their job back or go to an alternative job approved by WRC, is not entitled to any back pay from the date of dismissal.

Question 24

Compensation

Answer 24

The employee gets up to 2 years salary if they have suffered from financial loss due to the dismissal, up to 4 weeks salary if they have not suffered from a financial loss.

Question 25

Constructive dismissal

Answer 25

This occurs when an employee resigns from their job due to their employers conduct towards them. The employee feels that the employer has made their working life so difficult that it is impossible to remain in their job. In cases of constructive dismissal, the burden of proof lies with the employee to show that the resignation. Before resigning, the employee should have tried every other possibility to solve the issue with the employer.

Question 26

An example of constructive dismissal

Answer 26

A restaurant manager constantly makes rude remarks to a staff member and humiliates them in front of customers and other employees. They give them all the dirty jobs to do. They become so upset by this treatment that she resigns to escape it. The employee can take a case against the employer to an adjudication officer at the WRC. The adjudication officer will investigate the dispute. He will ask each side to state its case and present any evidence relevant to the complaint. Having considered the evidence they give their legally binding decision on how it is to be solved in writing.

Question 27

Evaluation of the unfair dismissals act 1977-2021

Answer 27

In my opinion this act does a good job of protecting employees. Employees cannot lose their jobs and incomes because of unjustified reasons, such as their employee not liken them. The employer has to have a legitimate reason and has to be able to prove this reason for dismissing an employee