It's time my farm worker and I part ways

It is always wise to seek legal advice before dismissing an employee, writes Stephen Coppinger
It's time my farm worker and I part ways

The responsibility lies with the employer to prove that they had fair grounds for dismissal.

Dear Stephen, 

I am a farmer who has had two employees helping me around the farm for the last few years. In recent months, I have found that one of the employees has become quite difficult to work with on a day-to-day basis, sometimes refusing to complete tasks that I have given to to him and the work overall is not up to standard.

I have addressed this issue to him verbally a couple of times, where he apologies profusely and ensures me that it will not happen again. However, there has not been an improvement and it is impacting on the day to day running of the farm.

I think that it is best if I let him go, and I am wondering is there a certain procedure which I have to follow to ensure that I go about the dismissal in the correct way. What is the best way of doing this?

Dear Reader,

You should consider the law on Unfair Dismissals in Ireland before taking any further action.

The governing legal provision which is relevant to this scenario is the Unfair Dismissals Acts of 1977 to 2015.

Firstly it should be noted there are automatic grounds for unfair dismissal, including the following: i) Age ii) Religion, iii) Race, iv) Membership of a particular Trade Union or v) Pregnancy. From the information you have provided, it seems that none of these grounds are applicable to your situation.

If an employee believes they are unfairly dismissed, they can bring a claim to Workplace Relations Commission.

This has to be done within six months of the date of dismissal, and they typically have to have 12 months of continuous service to bring such a claim.

You will have to show the WRC the dismissal was fair, and there are ground for a fair dismissal, and these are outlined in Section 6 of the 1977 Act.

The four primary grounds are as follows: i) Capability, competence, qualifications of employee ii) Conduct of employee, iii) Redundancy of employee iv) contravention of law.

If an employee succeeds in a claim for unfair dismissal, they can be ordered to be reinstated or can be financially compensated for loss of earnings.

When dismissing an employee, you need to show the dismissal is not within the automatic grounds and is within the grounds for a fair dismissal and show that you have followed fair and proper procedures in the dismissal. This is often the downfall of employers in the WRC that fair procedures have not been followed.

I would recommend you write to the employee inviting him to a formal disciplinary meeting, and you should send a letter should set out why the meeting is being requested and that the outcome of the disciplinary meeting may be dismissal, and that he has the right to representation at this meeting who could be a work colleague or trade union representative. Typically, solicitors do not attend these meetings.

Following the meeting, he should be given the opportunity to respond fully to all allegations or complaints, and you have to consider these before making a decision to dismiss.

There can’t be any bias on your behalf when making a decision, and the dismissal should be proportionate to the wrongdoing. The employee should be given the right to appeal a decision to terminate his employment.

It is important for all employers to follow the correct legal procedural conduct when dismissing an employee, and if you don’t follow the correct procedures, there is a risk that a dismissal will be deemed unfair if a claim is bought against you by your employee.

It is advisable that you prepare an appropriate disciplinary and grievance procedure which should be annexed to the employment contract.

Stephen Coppinger, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email:  info@walshandpartners.ie 

Web: www.walshandpartners.ie

  • While every effort is taken to ensure the accuracy of the information contained in this article, Walsh & Partners does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.

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