Unfair dismissal is governed in Ireland by the Unfair Dismissals Acts 1977-2001, and two fundamental principles should be noted.
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 to be automatically unfair. These include:
• membership or proposed membership of a trade union or engaging in trade union activities
• 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 an employee are:-
1. Conduct or Behaviour
4. Breach of Statutory Restriction or;
5. Some other substantial reason
Normally before a dismissal, the employer should arrange a disciplinary 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 cannot be sacked for a first offence unless their behaviour is so serious and it amounts to gross misconduct.
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. It is very important that as an employer you seek legal advice before dismissing an employee.