Have you been stressed and anxious about an employment issue recently?
Termination of Employment Fair Dismissal Unfair Dismissals Dismissal Procedures-Some Essential Facts You Should Know Termination of employment issues have the potential to cause the employer a lot of money, and a lot of grief and heartache for the employee.
It is important for any small business to have a basic understanding of the procedures and the rights of employees and employers when it comes to terminating employment. The most commonly litigated aspect of employment law is instances involving the termination of the employment contract itself.
Although disputes are not uncommon in the workplace, most will be resolved without the parties involved being compelled to terminate the employment contract. However in some instances this may be the only reasonable avenue available to either or both parties.
Contracts of employment may be terminated in a number ways including: Check out our other employment law in Ireland articles Termination of employment by Agreement As is the case with all contracts, contracts of employment may be terminated with the consent of both parties.
In certain circumstances a term of the contract may be inserted to deal with the termination of the contract, by means of notice by either party. In this instance it is generally understood that a certain minimum time must have elapsed prior to the term being activated.
An alternative means by which the contract of employment may be brought to an end involves the payment of an agreed sum, made with the intention that the contract shall be terminated forthwith. In certain circumstances where the interests of both parties are served by the immediate termination of the contract of employment, then no such monies may be necessary i.
Termination of employment by Repudiation A repudiation of the employment contract occurs where either party unilaterally fails to abide by the terms agreed, eg forced resignations, failure to pay remuneration, unilaterally changing the nature of the work.
In circumstances where an employee is the one alleged to have committed a repudiatory breach of the employment contract, for example by means of unambiguously leaving the job at issue, the contract is not deemed to be terminated and it is still at the discretion of the employer to retain the services of the employee.
The reasoning behind this principle is to avoid rewarding employees who seek to prematurely end their contracts deliberately. Termination of employment by Frustration One of the more recent innovations in the law of contract is the legal principal of frustration, whereby circumstances outside of the control of either party mean that the contract comes to an end and any further contractual obligations are set aside.
In the context of the contract of employment, the factors accepted are inclusive of but not limited to: Notice of Termination One of the terms of any contract of employment will generally be the length of notice required to lawfully terminate the contract.
In the event that no such clause is deemed to exist then reasonable notice must be given this will be determined by the individual circumstances of any contract. Read more about notice periods for termination of the contract of employment. However where an employee is being dismissed for a very serious breach of contract, there is no entitlement to any notice.
The process whereby an employer decides to immediately terminate an employment contract is legally regarded as a summary dismissal. This power may be exercised in circumstances where the contract of employment expressly stipulates or alternatively where the employee is guilty of serious misconduct.
The exact factors which constitute a serious misconduct may be cited in the contract or alternatively where this is not the case, the individual circumstances of the employment may be considered. However, some actions are so nefarious as to be instantly regarded as such including: Dismissal Procedures In most cases the employment contract should specify or directly incorporate the manner in which dismissal procedures should be conducted.
Indeed statute compels all employers to issue new employees with a directive on appropriate dismissal procedures within one month on initiating employment under section 14 of the Unfair Dismissals Act In the event that this directive is altered, a minimum of 28 days notice must be given to the employee.
Codes of Practice on Disciplinary Procedures In the advent of any dismissal procedures being initiated, the employee has a Constitutional right to expect fair procedures.
In essence this means that an employee must be made aware of any evidence against them and should be afforded the opportunity to respond to the allegations. In the event that a breach of fair procedures is found then the courts can order that the employee be continued to be paid pending a full hearing of the action.
Procedures are necessary to ensure that discipline is maintained in the workplace and that disciplinary measures can be applied in a friar and consistent manner. The procedures must comply with the principles of natural justice and fair procedures including 1.
Details of the allegations or complaints are put to the employee concerned. The employee concerned is given the opportunity to avail of representation.Unfair dismissal. 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Unfair dismissal in Ireland is governed by the Unfair Dismissals Acts and two points/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. dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unfair.
2. Who is covered? In general, the Acts apply to any person I. working under a contract of employment or apprenticeship II.
employed through an employment agency. Notice to employees of procedure for, and grounds of, dismissal. Alternative remedies of employee. Amendment of Act by order of Minister. Regulations.
Employment Appeals Tribunal. Repayment of moneys paid under Redundancy Payments Acts, and Amendment of First Schedule to Minimum Notice . ‘ Act of ’ means the Unfair Dismissals Act ; ‘ dismissal ’ has the same meaning as it has in the Act of ; ‘ relevant date ’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.
(The text given below does not form part of the Unfair Dismissal Act ) • The procedure, which the employer observes prior to dismissal, should afford the employee a genuine opportunity to change.