Ask a solicitor: My farm manager is using the work van for personal use. Can I sack him?

Termination is an extremely contentious area, and one which an employer should take great care in handling, writes rural solicitor Karen Walsh

If fair procedures are not followed in terminating an employee’s employment, despite there being substantial grounds for dismissal, a termination of employment shall still be deemed to be unfair. File picture.

Dear Karen, 

I have a farm manager employed on the farm and there is a farm van that is only supposed to be used for work purposes and not for personal use, but he has been using it for personal use. I gave him a verbal warning and despite my verbal warning, he is still continuing to use it for personal use.

I have half a mind to sack him — can I just go ahead and do this? I feel furious that despite giving him a clear verbal warning, he still has defied me. He has been employed by me for a year and a half.

Dear Reader, 

This is a tricky situation and the short answer, at present, is that you cannot dismiss him after just giving a verbal warning and not carrying out any further procedures.

Section 2 of the Unfair Dismissals Act 1977 confirms an employee who is employed for a year or more, is entitled to claim unfair dismissal if he or she is dismissed, or constructively dismissed, should the conditions of work be made so difficult that the employee feels obliged to leave.

Section 6 of the 1977 act states the dismissal of an employee shall be deemed to be an unfair dismissal unless having regard to all the circumstances, there was substantial grounds justifying the dismissal.

Fair procedures must be followed in effecting the termination. This is an extremely contentious area and one which an employer should take great care in handling. If fair procedures are not followed in terminating an employee’s employment, despite there being substantial grounds for dismissal, a termination of employment shall still be deemed to be unfair.

It is important that when an employee is facing disciplinary action, fair procedures are followed, including informing the employee of the complaint without delay, carrying out an impartial investigation, facilitating a fair hearing, which allows the employee to make his or her counter arguments, and providing the employee the opportunity to cross-examine witnesses as to facts which are essential to the establishment of charges against the employee.

Section 7 of the 1977 act as amended by the 2015 act states that where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress from the WRC as it considers appropriate having regard to all the circumstances.

Section 6(4) of the 1977 act states that in circumstances where an employer takes a decision to dismiss an employee, the dismissal must be justified on one or more of the following grounds:

• The capability, competence and qualifications of the employee;
• The redundancy of the employee;
• The fact the continuation of the employment would contravene another statutory requirement or the conduct of the employee.

In the case of O’Connor vs Brewster, the claimant was employed as a night man at the respondent’s stud farm from March 6, 1989, until May 12, 1990, the date of his dismissal. 

The claimant’s job was to monitor mares who were due to foal and to inform the stud groom there were signs foaling was imminent. The tribunal accepted the claimant was aware failure to do so would endanger mares and foals and possibly the respondent’s business. 

The respondent had warned the claimant in relation to absence from work on a Sunday and his failure to alert the groomsman about a foaling. 

The tribunal held the claimant was aware of his job requirements and knew the neglect of his duties would lead to termination of his employment. The claimant was warned such neglect was unacceptable to the employer and that it amounted to gross misconduct. The dismissal was upheld, and the claimant’s unfair dismissal claim was dismissed.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of 'Farming and the Law'. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email: [e-mail] 

Web: www.walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh 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.