Minimum Notice, Dismissals etc.
MINIMUM NOTICE
The Minimum Notice and Terms of Employment Acts, 1973 to 2001
provides that employees in continuous service with the same employer
for at least 13 weeks are entitled to a minimum period of notice before
the employer may dismiss them.
Prior to December 20, 2001 the Acts did not apply to a person who was
normally required to work for the employer for less than 8 hours a week.
However, from that date the Protection of Employment (Part-Time
Work) Act, 2001 has removed the exclusion relating to the number of
hours worked.
The period of notice to which an employee is entitled varies according
to length of service as follows:
Length of Service - Minimum Notice
Thirteen weeks to two years - One week
Two years to five years - Two weeks
Five years to ten years - Four weeks
Ten years to fifteen years - Six weeks
More than fifteen years - Eight weeks
The Acts also provide that employers are entitled to at least one week’s
notice from employees who have been employed by them for thirteen
weeks or more.
Notice entitlements under the contract of employment may exceed the
minimum periods stipulated in this Act but any provision in a contract of
employment for shorter periods of notice than the statutory minimum
periods has no effect. The Acts do not, however, preclude an employer
or employee from waiving their right to notice or accepting payment in
lieu of notice.
The Acts do not affect the right of an employer or employee to terminate
a contract of employment without notice due to the misconduct of the
other party.
Disputes about such matters as the right to notice, length of notice and
calculation of continuous service may be referred to the Employment
Appeals Tribunal.
REDUNDANCY PAYMENTS SCHEME
The Redundancy Payments Acts, 1967-2003 impose a statutory
obligation on employers to pay compensation to employees dismissed
for reasons of redundancy. This arises where an employee’s job
ceases to exist and he or she is not replaced for such reasons as the
financial position of the firm, because there is not enough work, the firm
closes down altogether, or because of re-organisation.
The Acts basically provide as follows: -
(i) An employee with 104 weeks’ continuous service, aged
between 16 and 66, and whose employment is terminated
because of redundancy is entitled to a redundancy lump-sum
payment.
Prior to December 20, 2001 the Acts did not apply to a person
who was normally required to work for the employer for less
than 8 hours a week. However, from that date the Protection
of Employment (Part-Time Work) Act, 2001 has removed the
exclusion relating to the number of hours worked.
(ii) The lump-sum redundancy payment is calculated as follows:
*two week’s pay for each year of service, and in addition one
single week’s pay.
*A week’s pay is subject to a ceiling of € 600.00 a week (€31,200 per year)
(iii) The lump-sum must be paid by the employer direct to the
employee.
(iv) Employers are entitled to a rebate of 60% from the
Department of Enterprise, Trade and Employment provided
they have given the employee two weeks’ notice.
In cases covered by the Acts, the requisite two weeks’ written notice of
redundancy must be given to each employee on the prescribed form,
R.P.1, available from Employment Exchanges, FAS offices and the
Department of Enterprise, Trade and Employment. A copy of this
notice must be sent to the Department of Enterprise, Trade and
Employment at the same time.
When dismissal actually takes place, the employee must be given a
Redundancy Certificate (form R.P.2). During the period of notice, the
employee should be given reasonable time off to look for other work.
The employer’s claim for rebate of 60% of the lump-sum should be
made to the Department of Enterprise, Trade and Employment on form
R.P.3 (accompanied by copies of the Redundancy Certificates on
forms R.P.2). Rebates are paid out of the Social Insurance Fund.
When an employee is entitled to a statutory redundancy payment and
has taken all reasonable steps (excluding legal proceedings) to obtain
the payment, but the employer refuses or fails to pay, he or she may
apply to the Department of Enterprise, Trade and Employment for
payment.
Disputes regarding entitlements under the Acts may be referred to the
Employment Appeals Tribunal.
DISMISSAL
The Unfair Dismissals Acts, 1977 to 2001 provide protection for
employees from being unfairly dismissed from their jobs by laying
down criteria by which dismissals are judged to be unfair and by
providing an adjudication system and redress for an employee whose
dismissal has been found to be unjustified.
With effect from 1st October, 1993, a Rights Commissioner/the
Employment Appeals Tribunal may consider whether the employment
of a person on a series of two or more contracts of employment,
between which there was no more than 26 weeks of a break, was for the
purpose of avoidance of liability by the employer under the Acts. Where
it is so found, the length of the various contracts may be added together
to assess the length of service of an employee for eligibility under the
Acts.
With effect from 1st October, 1993, persons engaged through
employment agencies are covered by the scope of the legislation. For
the purposes of the Acts, the party hiring the individual from the
employment agency is deemed to be the employer.
The Acts apply to employees who and who (with certain exceptions,
see below) have had at least a year’s continuous service with the same
employer.
Prior to December 20, 2001 the Acts did not apply to a person who was
normally required to work for the employer for less than 8 hours a week.
However, from that date the Protection of Employment (Part-Time
Work) Act, 2001 has removed the exclusion relating to the number of
hours worked.
The Acts do not cover employees on fixed term or fixed purpose
contracts who are let go when the contract expires or the purpose
ceases, provided the contract, signed by both parties, specifies that
the Unfair Dismissals Acts do not apply. With effect from 1st October,
1993, if a series of two or more of these contracts, between which there
was no more than a 3 month break, is considered to have existed for the
purpose of avoidance by the employer of liability under the Acts, they
will be added together in calculating continuous service of an
employee for eligibility under the Acts. Apart from this, any provision in
an agreement, whether a contract of employment or not, to exclude or
limit the application of the Acts is void.
The Acts also do not cover, for example, FAS designated
apprenticeships where the employee is let go in the month following
completion of the apprenticeship (unless the dismissal results wholly
or mainly from (vi) (vii) (viii) (ix) or (xiii) below).
The Acts do not apply to the dismissal of an employee where the
employer has informed the employee in writing at the commencement
of employment that his/her employment will terminate upon the return
to work of another employee who is absent on protective leave or natal
care absence under the Maternity Protection Act, adoptive leave under
the Adoptive Leave Act 1995, or carer’s leave under the Carer’s Leave
Act 2001.
The Acts provide that every dismissal of an employee will be presumed
to have been unfair unless the employer can show substantial grounds
justifying the dismissal. In order to justify a dismissal, an employer
must show that it either resulted from one or more of the following
causes:-
(i) the capability, competence or qualifications of the employee,
(ii) the employee’s conduct,
(iii) the redundancy of the employee,
(iv) the fact that continuation of the employment would
contravene another statutory requirement,
or that there were other substantial grounds for dismissal.
An employer who has dismissed an employee must, if asked, furnish in
writing within 14 days the reason for the dismissal. Dismissals are
unfair under the Acts where it is shown that they have resulted wholly or
mainly from any of the following:-
(i) the employee’s trade union membership or activities, either
outside working hours or at those times during working hours
when permitted by the employer,
(ii) the religious or political opinions of the employee,
(iii) the race or colour or sexual orientation of the employee,
(iv) legal proceedings against the employer where the employee
is a party or a witness,
(v) the unfair selection of the employee for redundancy,
(vi) the employee’s pregnancy, the employee having recently
given birth or is breastfeeding or any matters connected
therewith,
(vii) the exercise or proposed exercise by an employee of the right
to protective leave or natal care absence under the Maternity
Protection Act, 1994,
(viii) the exercise or contemplated exercise of the right to adoptive
leave or additional adoptive leave by the employee under the
Adoptive Leave Act, 1995,
(ix) the exercise or proposed exercise by the employee of the
right to parental leave or force majeure leave under the
Parental Leave Act 1998,
(x) the age of the employee,
(xi) the employee’s membership of the travelling community.
(xii) the employee’s rights or proposed exercise of rights under
the National Minimum Wage Act 2000.
(xiii) the exercise or proposed exercise by the employee of the
right to carer’s leave under and in accordance with the
Carer’s Leave Act, 2001.
Employees claiming dismissal due to (i), (vi), (vii), (viii), (ix), (xii) or (xiii)
may bring an unfair dismissal claim even though they do not have a
year’s continuous service with their employer. It can also be construed
as dismissal if a person’s conditions of work are made so difficult that
he or she feels obliged to leave. This is called constructive dismissal.
The redress for unfair dismissal is:-
(i) re-instatement in the old job, or
(ii) re-engagement in the old job or in a suitable alternative job on
conditions which the adjudicating bodies consider
reasonable, or
(iii) financial compensation within a maximum of two years’ pay
(the precise amount of compensation can depend on such
matters as where the responsibility for the dismissal lay, the
measures taken to reduce financial loss or the extent to which
negotiated dismissal procedures were followed, if these
existed).
An employee found to have been unfairly dismissed but who has
suffered no financial loss may be awarded up to 4 weeks’ pay.
Employees considering that they have been unfairly dismissed from
their job and wishing to make a claim for redress under the Acts, must,
within six months of the date of dismissal, give formal notice of their
claim in writing either to:-
(i) a Rights Commissioner, or
(ii) (if the employee or the employer has notified a Rights
Commissioner in writing that they object to the claim being
heard by a Rights Commissioner) to the Employment Appeals
Tribunal.
With effect from 1st October, 1993-
(i) the time limit for the hearing of a claim for redress for unfair
dismissal shall be extended to 12 months in cases where
exceptional circumstances have prevented the lodgment of
the claim within the normal time limit of 6 months;
(ii) an employee will be entitled to bring a claim directly to the
Tribunal without having to notify the Rights Commissioner
Service in the first place; and
(iii) the responsibility for sending a copy of the employee’s claim
to the employer will pass from the employee to the Rights
Commissioner or to the Tribunal, as the case may be.
Employees who consider they have been unfairly dismissed but who
do not qualify under the Unfair Dismissals Acts for certain reasons (e.g.
have less than a year’s continuous service) may, in most cases, refer
the matter to a Rights Commissioner under the Industrial Relations
Act, 1969 (see also pages 40 to 52).
EMPLOYERS' INSOLVENCY PAYMENTS SCHEME
The Protection of Employees (Employers’ Insolvency) Acts, 1984 to
2001 protect certain outstanding entitlements relating to the pay of
employees in the event of their employers’ becoming insolvent as
defined in the 1984 Act.
Subject to certain limits and conditions including statutory time limits,
money due to employees by way of arrears of pay (including arrears of
pay due under an Employment Regulation Order), holiday and sick
pay, entitlements under the Minimum Notice and Terms of
Employment Act, Anti-Discrimination (Pay) Act, Employment Equality
Act and Unfair Dismissals Act and money due on foot of court orders in
respect of wages, holiday pay or damages at common law for wrongful
dismissal may be paid by the Department of Enterprise, Trade and
Employment out of the Social Insurance Fund.
The Scheme also protects employees’ outstanding contributions to
occupational pension schemes which an employer may have deducted
from wages but not paid over. Unpaid contributions to an occupational
pension scheme on an employer’s own account may also be paid from
the Fund, subject to certain limits. The Scheme applies to outstanding
pension contributions for up to a year prior to the date of insolvency of
an employer.
The Scheme covers workers who were employed in employment fully
insurable for all benefits under the Social Welfare Acts.
Prior to December 20, 2001 the Protection of Employees (Employers’
Insolvency) Acts did not apply to a person who had been in the
continuous employment of his or her employer for less than 13 weeks
or was normally required to work for the employer for less than 8 hours
a week. However, from that date the Protection of Employment
(Part-Time Work) Act, 2001 has removed the exclusion relating to the
number of hours worked and the number of weeks continuous service.
Employees should claim from the employer’s representative (usually
the liquidator or receiver) for payment of outstanding entitlements.
There are statutory forms provided for this purpose available from the
Department. Disputes regarding entitlements under the Act may be
referred to the Employment Appeals Tribunal.
