There is a wide number of forums available for employees to seek to have their employment rights upheld and vindicated.
• The Rights Commissioner service
• The Employment Appeals Tribunal
• The Labour Court
• The Labour Relations Commission
• The Equality Tribunal
• The Courts
• The Health and Safety Authority
• The National Employment Rights Authority (NERA).
Here is a brief look at these bodies. Elsewhere on this site you will see the occasions when you have to go to one of these bodies or the other as breaches of various pieces of employment law legislation occurs.
The Rights Commissioner service can deal with transfer of undertakings, unfair dismissals (if there is no objection by either party), health and safety, protection of employment, protection of young persons in employment, protection of fixed term workers, adoptive leave issues, carer’s leave, industrial relations, minimum wages, organisation of working time, terms of employment, payment of wages, parental leave, maternity protection, persons reporting child abuse.
Take a look at the Labour Relations Commission website at www.lrc.ie for more information and to download the relevant forms.
Employment Appeals Tribunal
The Employment Appeals Tribunal (EAT) is the traditional venue for unfair dismissal cases, even though a Rights Commissioner can hear such a case provided there is no objection by either party. The EAT can determine cases itself in certain circumstances as well as deal with appeals from decisions of the Rights Commissioner.
It can hear cases concerning minimum notice, terms of employment, payment of wages, organization of working time, transfer of undertakings, parental leave, redundancy payments, carers leave, maternity protection, adoptive leave, and more.
The Labour Court is essentially an industrial relations tribunal, notwithstanding it’s name. It’s principal task is to attempt to resolve industrial relations disputes.
Whilst it can hear cases at first instance in certain matters such as organisation of working time, protection of employment, industrial relations, protection of part time employment, protection of fixed term employment, employment equality and minimum wages it sees itself as a forum of last resort and cases should only be referred to it when all other attempts at dispute resolution have failed.
Labour Relations Commission
The Labour Relations Commission is concerned with industrial disputes and providing the Rights Commissioner Service.
The Equality Tribunal
The Office of the Director of Equality Investigation (the Equality Tribunal) is the venue for redress under the Employment Equality Acts.
Decisions of the Equality Tribunal can be appealed to the Labour Court.
The Civil Courts deal with applications for injunctions, wrongful dismissal, and breach of contract. The can also hear appeals from the other forums above.
The Health and Safety Authority is concerned with occupational health and safety and can prosecute breaches of health and safety law. It also plays a large role in the enforcement of anti bullying and harassment policies and procedures in the workplace.
NERA (National Employment Rights Authority)
NERA is looked at closely here. It’s primary function is to provide information to employers and employees and to monitor and inspect employment conditions. It can also prosecute breaches and enforce compliance re holidays, organisation of working time, dismissal, notice, working time, and payment of wages.
It’s enforcement services unit can attempt to have determinations of the Labour Court or EAT enforced through the Courts. (However you might be better off engaging the services of a solicitor and pursuing this yourself as it is likely to be quicker.)
The payment of wages in the employment contract is governed by the Payment of Wages Act, 1991 and this piece of legislation stipulates that wages be paid by cheque, cash, draft, credit transfer and postal order.
Written Statement of Wages and Deductions
The employer is obliged to provide a written statement of wages and deductions at the time of payment. It is worth noting that in the case of schools in Ireland for the purposes of the Payment of Wages act, 1991 the Department of Education and Skills is deemed to the employer. This is so even though the Board of Management of a Primary school or manager of a secondary school will have negotiated the contract.
Permitted Deductions of Wages
There are only a few situations where deductions may be made from the emplyee’s wages and these situations include
if the law requires it,
if provision is made for the deduction in the contract of employment and
where the employee has given written consent for the deduction.
Deductions are permitted where they are the result of disciplinary proceedings or to reimburse the employer for over payment of wages.
Non Payment of Wages
The act also goes on to say that where an employee is shortchanged or not paid at all, then the shortage will be considered by the act to be a deduction which is unlawful.
Any employee who has a problem in this regard can make a complaint to the Rights Commissioner (within 6 months) and the Rights Commissioner can make an order directing the employer to make payment up to twice the net amount of wages that should have been made to the employee.
Any decision of the Rights Commissioner can be appealed to the Employment Appeals Tribunal and from there to the High Court, but only on a point of law in relation to the latter appeal. It is worth noting that a decision of a Rights Commissioner or a decision of the Employment Appeals Tribunal has the same force as an order of the Circuit Court.
Any term in an employment contract which seeks to limit or exclude the operation of the Payment of Wages Act, 1991 is void and won’t be recognised.
Minimum Wage Rates
The minimum wage rate in Ireland since July, 2011 is €8.65 for an experienced adult employee. An experienced adult employee is a worker who has at least 2 years’ experience since turning 18 years of age.
However trainees, employees under 18 years of age, and employees entering employment for the first time after turning 18 can be paid slightly less.
Disputes can be referred to a Rights Commissioner by an employee after he/she has received a written statement of pay from his employer with the option of appealing the decision to the Labour Court. Employers-How to Avoid Costly Employment Claims If you have a question or concern, please use the contact form below. We respond within 24 hours, guaranteed.
Unfair dismissal in Ireland is governed by the Unfair Dismissals Acts 1977-2007 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.
The Unfair Dismissals Act covers people who have been in employment for at least 52 weeks continuous service and who have not reached the normal retirement age for the employment in question.
However if there is no retirement age provided for in the contract then the employee can continue working and any dismissal will give rise to a claim for unfair dismissal.
However employees in the following categories do not have to show 52 weeks continuous service:
employees who have been dismissed for trade union membership, pregnancy, maternity, ante-natal, post natal related matters, employees dismissed for exercising rights to parental leave or carer’s leave.
Employees who are not covered by the legislation include FAS trainees, members of the Defence Forces, Gardai and civil servants.
It may seem blindingly obvious but only employees may use the legislation in respect of a termination of employment-sub contractors for example would not be covered.
Fixed Term and Specified Purpose Contracts
Unfair dismissal legislation does not apply to fixed term and specified purpose contracts provided
The contract was in writing
The contract specifically excluded the legislation
The contract was signed by both parties.
Many employers use fixed term and specific purpose contracts in the belief that they are under no obligation to renew once the term has expired.
However, non-renewal can amount to a dismissal.
The employer must be able to show that it was a genuine fixed term contract in the first place and that there was a commercial justification for it.
An employee who has been dismissed has two avenues of remedy open:
A claim to a Rights Commissioner or Employment Appeals Tribunal within 6 months (12 months in exceptional circumstances) or
The Courts where he/she can bring an action for breach of contract or breach of constitutional rights. Because the cause of action is a breach of contract the time limit is six years.
To bring a claim for unfair dismissal under the Unfair Dismissal Acts 1977-2007 the employee must show
He was dismissed
He had a contract (oral or written)
He had 1 year’s continuous service
He must be over 16 years of age.
An employee may succeed in a claim for constructive dismissal in circumstances where the employee resigns the employment as a result of the employer’s conduct towards the employee.
Circumstances giving rise to this situation include a reduction in pay, a deterioration in the working environment, change of job roles, unwarranted warnings, change of location of the job and many others.
Not all of these situations will always give rise to a successful claim for constructive dismissal but these are the kinds of things that employers must be very careful about if they don’t want to end up in the Employment Appeals Tribunal.
However employees on probation up to a period of one year are excluded from the protection of the legislation.
Once a dismissal has taken place the burden is on the employer to show that it was not an unfair dismissal.
There are a number of categories of dismissals which the Unfair Dismissals Act 1977 and 1993 deem to be automatically unfair. They are on the grounds of 1. trade union membership 2. the colour, race or sexual orientation of the employee 3. the employee’s religious or political opinions 4. where the employee is involved in legal action against the employer 5. the employee’s age 6. the fact that the employee is a member of the traveling community 7. the employee becoming pregnant 8. the employee taking part in industrial action.
These are the main grounds which the legislation deems to give rise to an unfair dismissal claim and are deemed by the law to be automatically unfair.
In addition if you can show that you qualify to bring a claim under the Unfair Dismissals legislation and your employer accepts that there was a dismissal, it will be for your employer to show that there were fair grounds for the dismissal as the burden of proof shifts from you to the employer.
There are a number of limited grounds on which a dismissal can be justified by the employer as fair dismissals. They are on the grounds of
competence, capability or qualification
fixed term contracts or specific purpose contracts coming to a natural end
other substantial grounds.
The employer has a defence in the form of redundancy but he must be able to show that the employee has been fairly selected for redundancy. However if the employer seeks to employ the redundancy defence he can expect that if an unfair claim is made against him he will find that his redundancy defence is put under a fair degree of scrutiny.
For example, it is not enough that the employer can show that his workforce numbers requirement is expected to decline some time in the future-he must be able to show that is requirements will lower in the very near future to the redundancy that he has just carried out.
The Employment Appeals Tribunal is very strong on fair procedure in relation to the termination of an employee’s job; they have held many times in the past that if they find that fair procedure was not followed then they will deem the dismissal to be unfair, regardless of the circumstances.
Adopting and implementing this Code of Practice on Grievances and Disciplinary procedures, while not mandatory, is an important factor in the employer successfully defending a claim of unfair dismissal.
The basis for the disciplinary procedure is clear ie the employee knows what he has done wrong
The penalties are clear
An internal appeals mechanism is in place.
The range of disciplinary sanctions provided for include an oral warning, a written warning, suspension with/without pay, transfer etc.
Generally the employer is required to set out the employee’s shortcomings, point out the required improvements, and give sufficient time to make the improvements.
The acid test tends to be what would a reasonable employer do and this will depend on the particular circumstances as the conduct may be of such serious nature as to warrant immediate dismissal. These circumstances are limited though an d the employer should take legal advice before dismissing without notice.
Remedies for unfair dismissal
The employee can bring a case for unfair dismissal under the Unfair Dismissals Acts 1977-2007 to a Rights Commissioner or the Employment Appeals Tribunal within 6 months.
The awards against the employer can include
compensation from a minimum of four weeks remuneration up to a maximum of 2 years remuneration.
Remuneration in this context includes salary, bonuses, benefits.
The Rights Commissioner and Employment Appeals Tribunal will consider what the employee has done to mitigate his loss and whether he has been able to find work since the dismissal.
Assessment of Loss
While the EAT can award up to 104 weeks compensation, the employee has a duty to mitigate his/her loss be seeking alternative employment.
The employee’s loss is financial loss (not injury to feelings etc.) up to a maximum of 104 weeks but this was amended by section 6 of the Unfair Dismissals (Amendment) Act 1993 which has the following effect:
1. if an employee has a nil financial loss (eg he immediately gets employment or is unfit to work due to sickness) the maximum he can be awarded is 4 weeks’ remuneration.
2. social welfare benefits should not be regarded in calculating financial loss.
The EAT can also reduce the award for any contributory conduct by the employee.
Please note the WRC (Workplace Relations Commission) replaced the Employment Appeals Tribunal from 2015 but the law concerning unfair dismissal has not changed and he principal act is the Unfair Dismissals Act 1977.