Karen Walsh: Boss can dismiss staff within set legal guidelines

Unfair dismissals are top work-related court action, but that’s not the full story.

Did you know that the top category for employment related claims in Ireland is for unfair dismissal?

One of the biggest myths in employing staff is that it is almost impossible to fire a member of staff.

The truth is quite different, and although the law is quite complicated, it should not be difficult to get the basics right.

The short time that it takes you to read this article could save you a lot of stress and money and help you to avoid a successful unfair dismissal claim.

Unfair dismissal is governed in Ireland by the Unfair Dismissals Acts 1977-2001, and two fundamental principles need to be made clear about this legislation at the outset.

1. An employer must have substantial grounds for dismissing an employee;

2. In doing so, the employer must apply fair procedures to the process.

The Unfair Dismissals Acts cover people who have been in employment for at least 52 weeks continuous service and have not yet reached the normal retirement age for the employment in question.

Certain reasons for dismissal are considered automatically unfair.

These include:

* Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours.

* Religious or political opinions.

* Legal proceedings against an employer where an employee is a party or a witness.

* Race, colour, sexual orientation, age or membership of the Traveller community.

* Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth.

* Availing of rights under legislation such as maternity leave, adoptive leave, carer’s leave, parental or force majeure leave.

* Unfair selection for redundancy.

To dismiss fairly, you need a combination of one of the five potentially fair statutory reasons plus a procedure that is fair and reasonable.

The five potentially fair reasons to dismiss are as follows:

1. Conduct or behaviour.

2. Capability (including the inability to perform competently).

3. Redundancy.

4. Breach of Statutory Restriction (such as employing someone illegally).

5. Some other substantial reason (such as a restructure).

If you do not have one of these reasons then the dismissal would be unfair, even if fair procedures are utilised.

If you have one of these reasons, but do not follow proper and fair procedures then the dismissal can still be deemed to be unfair.

It is therefore critical that both of the fundamental principles of the legislation are adhered to.

Once a farm employer has established one of these reasons, he or she must act reasonably and be seen to do so before dismissing.

This means that he or she has to ensure certain steps are taken such as investigating properly, considering alternative penalties, acting consistently, and generally act with consideration and in a fair manner. This is where procedure comes in.

Generally, businesses will be expected to investigate before holding a disciplinary hearing.

This will usually involve giving the employee any evidence gathered in time to prepare for the hearing.

At the hearing, the employee should be given the opportunity to relay their side of the story to the other side and to challenge the evidence.

Employees should also be allowed to be accompanied by a colleague or a trade union representative, who can ask questions and represent them.

Employees can’t be sacked for a first offence unless their behaviour is so serious and it amounts to gross misconduct, which can include things like stealing or fighting etc. as well as engaging in behaviour that could damage the reputation of the farming business.

If the issue relates to an employee’s performance, they should be warned and given time to improve before being dismissed.

They must be given informal and formal warnings.

They must be given an opportunity to appeal against the dismissal too, and most employers will allow staff to appeal against written and final warnings.

It is also important that every business has a disciplinary policy.

The question as to whether or not your employer had a dismissal procedure in place will be taken into account when deciding if a dismissal was unfair.

There are common pitfalls to look out for and employment law is quite technical. Consequently, it is very important that you seek legal advice before dismissing an employee.