Bad things happen to people at work

1
Bad things happen to people at work

• They may not get paid what they deserve
• They may have to work longer hours
• If they are made redundant they may not get paid
  what they are owed
• They may be discrimminated against
• They may be fired unfairly
• They may become ill or lose their life

2
What can you do to protect yourself?

• Form a group (trade union)
• Take industrial action
• Take action through the law
• Go somewhere else

3
Unfair DismissalOverview

• Origins of the law
• Provisions of the law
• Grounds for dismissal
• Outcomes
• Reasonableness/procedures
• How well does the law protect?

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UNFAIR DISMISSAL

• . arbitrary and unwarranted termination of
  employment

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Unfair Dismissal

• 1972 1975 ----------- 187 Strikes
• 250,000 lost work-days
• Significant proportion due to unfair dismissal
• Unfair Dismissals Act, 1977

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Act Designed To

• encourage better/fairer decision making by
  employers
• Provide vehicle to employees before opting for
  industrial action

7
As A Result

• Management has responded with widespread changes
  in polices procedures in relation to discipline
  dismissal.
• Also dramatic reduction in incidence of strikes.

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Unfair Dismissals Act, 1977Unfair Dismissals
(Amendments) Act 1993

• Dismissal automatically unfair if attributed to
• Union membership
• Religious/political opinion
• Involvement in legal proceedings against employer
• Race/colour
• Sexual orientation
• Age
• Membership of travelling community
• Pregnancy

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Everyone Covered By Acts Except

• - Over retiring age
• - Close relatives of employer who work in
  private house
• - Members of defence forces/Gardai/ Employed by
  State
• - Serving apprenticeships eg. FAS
• - People who normally work outside State

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Grounds For Fair Dismissal

• Conduct
• Capability, competence, qualifications
• Redundancy
• Reasonableness Fair Procedures

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1. Conduct

• One act of gross misconduct or series of minor
  acts despite warning
• Examples
• - Sick leave abuse
• - Substance abuse
• - Dishonesty
• - Violence intimidation
• - Off-duty conduct embarrassing employer

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Dismissal re. Conduct

• Employer must be seen to consider mitigating
  circumstances
• good service record
• Personal difficulties
• First offence

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Conduct Related Cases 1997 (N 34)

• Violence
• Refusal to carry out orders (reasonable?)
• Drink-related/theft
• 45 dismissals upheld
• 55 dismissals deemed unfair
• (Failure to follow fair procedures most common
  reason)

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Eileen Flynn Vs Sisters of Holy Faith

• Secondary school teacher in New Ross
• Contested she was dismissed due to pregnancy
  automatically unfair
• Sisters claimed fairly dismissed for
  unacceptable conduct

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The Circumstances

• Co-habiting with married man his 3 kids
• His wife had left him before Keane met him
• Alleged complaints from parents other teachers
• Several warnings change behaviour or be
  dismissed
• Keane becomes pregnant - dismissed

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2. Capability/Competence/Qualifications

• Capability
• - Usually made incapable through injury/illness
• - Offered alternative work
• - If continuous absence employer must
  investigate
• - visit employee keep informed
• - independent medical report
• - is alternative work available
• - inform employee of decision

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• Competence
• - Were they properly selected?
• - Do they know whats expected?
• - Were they given adequate training?
• Requires notice to allow for improvement

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• Qualifications
• - Absence of formal qualifications essential for
  the job
• (eg. Doctor being struck off)
• - Employee misled employer
• - Failure to obtain relevant qualification

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3. Redundancy

• Employer ceases business, down-sizes or
• no longer needs particular type of work.
• Employee can contest on basis of unfair
• selection for redundancy
• Employer must comply with Redundancy Payments Acts

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Forms of Redress

• Reinstatement
• Slate wiped clean
• Re-engagement
• Partial responsibility
• Compensation
• gt 85 of outcomes

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Re-instatement

• Employee resumes same position
• Dismissal deemed never to have occurred
• Back-pay paid.

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• Re-engagement
• - Employee resumes same or reasonable suitable
  different position.
• - Continuity of service not affected.
• - Not back-dated.
• - Constitutes suspension without pay.
• Employee deemed to have contributed

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Compensation

• - Most common 75 successful cases
• - Maximum 104 weeks pay bonuses
• - Compensation based on actual loss of earnings.

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Some Statistics

• 2001 957 claims (including appeals)
• Average compensation 5,286
• Of 691 new claims
• - 124 allowed
• - 108 dismissed
• - 301 withdrawn during
• - 158 withdrawn prior

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Constructive Dismissal

• - Employee terminates own contract
• due to conduct of employer.
• - Situation intolerable.
• - Relatively rare.
• - Onus of proof is on you must prove you had no
  alternative

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KEANE Vs ICR ltd. 1989

• Reasons
• Workload long hours/week-ends
• Expenses not reimbursed
• Promised extra staff
• Pressure to carry out unethical
  practices
• EAT ruling in favour of Keane.
• Outcome 750 compensation

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Unfair Dismissal

• EAT/Rights commissioner take into account
• -reasonableness of employers conduct
• -compliance with disciplinary procedures
• Failure to comply with rules of natural justice
  may render a dismissal unfair.

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Disciplinary Procedures

• Employer maintain ? standards
• Dual purpose
• ? Employee fair equal treatment
• (a) Oral warning (f) Demotion
• (b) Written warning (e) Transfer
• (c) Final written warning (g) Dismissal
• (d) Suspension without pay

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Employer Obligations

• Investigation
• Hearing
• Warning
• Proportionate penalties

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Fair Practice

• - Employee entitled to warning opportunity to
  improve
• - If specific complaint entitled to know
  defend self
• - Entitled to attend or be represented at formal
  hearing
• - E.A.T. may gain access to any agreed
  disciplinary procedures

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Dismissals Outcomes 1994-1997

• 1994 1995 1996 2001
• Unfair 64 52 66 52
• Fair 36 48 34 48
• Only proportion of cases (average 50) get to
  final outcome

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Forms of Redress

• Reinstat. Reengage. Compen.
• 1995 4 4 92
• 1996 3 6 91
• 2001 2 4 94
• Totals 3 5 92

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Unfair Dismissal Legislation

• Does it better serve the employee or the
  employer?
• - Proportion of labour force not covered
• - Of successful cases
• - less than 25 re-employed or re-engaged
• - 75 awarded compensation average award
  less than 20 permitted maximum
• - Documented difficulty finding new employer

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Research - Josephine Browne 1993/44

• Unfair Dismissal Acts control mechanism for the
  employer support managerial prerogative.
• Law on unfair dismissal has become unfair to
  claimant.

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Support Management

• - Act establishes fair grounds for dismissal
  procedural requirements to achieve this.
• Provides employer with a menu
• - Personnel function transformed with Acts
• - guardians of procedures
• - Custodians of records
• Other issues neglected.

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continued

• - Compensation most frequent form of redress
  incentive to dismiss
• - Some Companies agree internal settlement to
  avoid publicity.
• - Some even have budget

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Law Has Become Unfair

• - Lack of criteria for fairness
  reasonableness ? inconsistencies.
• - Inconsistency in compensation awards
• - Lack of legal aid - costs money to get your job
  back

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Continued

• - Research relationship between legal
  representation, occupational status tribunal
  determination
• (Manual employees lowest level success lowest
  level legal representation)
• - Myth lay members of tribunal represent
  dissenting opinions
• Review of cases (1977-1989) 91 EAT
  determination unanimous

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Recommendations

• Training for tribunal members (legal I.R.)
• Free legal aid to all claimants employers pay
  costs
• Legislation to protect employees from
  discrimination in future recruitment

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More

• T.U.M. to get in touch. Provide legal advisory
  service
• Maximum compensation increased from 2-10 yrs
  remuneration
• Further research