The four scenarios below are quite common in the Irish workplace.
Each of them has the potential to be very costly for the employer if he/she acts on the common misconceptions contained in these hypothetical situations.
My employee is 67 and I want him/her to retire-can I just tell him/her that he/she must retire soon?
No, not unless you have stipulated a retirement age in the contract of employment. There is no general statutory fixed retirement age in Ireland. There is a retirement age set in some public sector jobs and in occupations such as Gardai, the fire service, and the Judiciary.
However in the private sector, if it is not in the contract of employment, the employee can continue working.
I never gave my employee a contract. He has worked with me for 7 years but now I want to give him a contract to reflect the changed economic circumstances.
Firstly, just because you failed to give your employee a written contract does not mean he doesn’t have a contract. He does.
And whatever written contract you propose giving him now must reflect the terms and conditions he has enjoyed to date. Any changes to these terms must be with his consent as not to obtain his consent will amount to a unilateral changing of the contract by you as employer.
This is not permissible and will leave you open to a claim for breach of contract and/or constructive dismissal.
I am not happy with my employee’s performance and I want to replace him with someone who will do the job properly.
You cannot do so without going through a procedure which is fair and allows the employee to improve after you have brought to his attention the failings in his work. This will involve in making clear the standards required of your employee and how he is falling short.
You will need to set out the improvements required and give him a reasonable time period within which to come up to the mark. You will also need to give warnings that failure to improve sufficiently may lead to dismissal (ultimately).
My employee has been out on certified sick leave for ages and I have been told I cannot dismiss her while she is on sick leave so I am stuck with her..
This is not the case-you can fairly dismiss in certain circumstances, even when your employee is out sick. However it will depend on the needs of your workplace, the length of service of your employee, whether the sickness is a long term absence or a series of short term illness related absences.
So, while it is not easy to fairly dismiss while your employee is on sick leave, it is possible.
Always consult a solicitor in relation to cases like those outlined above; each case will be hugely influenced by the particular circumstances and making decisions based on misunderstandings can prove very costly.
See EmploymentRightsIreland.com also.