Employment Update: Liability for Unfair Dismissal – Other Means of Redress

 

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A recent decision of the Labour Court serves as a useful reminder to employers that there is another route other than the Unfair Dismissals Acts by which an aggrieved employee can claim against an employer for a dismissal. We examine the alternative Industrial Relations Acts route and suggest tips for employers to ensure they are prepared in the event of these claims.

Under section 13 (9) of the Industrial Relations Act 1969, an employee who may not have statutory rights under the Unfair Dismissals Acts, may bring a claim that she/he was unfairly dismissed. Such a claim is brought initially to the Workplace Relations Commission (“WRC”) and ultimately to the Labour Court. Unlike the Unfair Dismissals Acts which have a statutory requirement of at least a year’s continuous service by an employee, the Industrial Relations Acts impose no such service requirement on employees.

In February 2017, in the case of A Worker v Therapie Clinic (decision no. LCR 21396), the Labour Court found an employer liable under the Industrial Relations Act 1969 for the unfair dismissal of a worker.

 

 

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It was disputed that the worker was dismissed as a result of complaints from three clients and the investigation that followed. The worker claimed that she was called to a meeting without being informed of her right to be accompanied by a colleague. This was in breach of her right to fair procedures. During that meeting, she was dismissed with immediate effect.

The WRC found in favour of the employer and deemed the dismissal to be fair and reasonable in the circumstances. The worker appealed the decision of the WRC to the Labour Court.

During the course of the Labour Court hearing, the Court was provided with a copy of the employer’s disciplinary procedures. The employer acknowledged at the hearing that the steps taken following receipt of the complaints from clients did not comply with their disciplinary procedures.

The Labour Court accepted that the client complaints carried potentially serious implications for the employer’s business. However, the Labour Court found that an essential feature of a fair disciplinary procedure is that the employer follows the procedure set down and understood in the employment when dealing with disciplinary matters. In this instance, the Court found that the employer did not follow its own procedure. The Court found that the actions taken by the employer were not fair and deviated from the employer’s own disciplinary procedure. As a result, the Labour Court found that the worker had been unfairly dismissed and awarded her compensation of €3,500.

Advice for employers

Employers should make sure that they have a disciplinary procedure in place and that it is fit for purpose.

Actual adherence by an employer to their own procedure is of paramount importance when a disciplinary investigation is required. The fact that a worker may have been on probation or may have had less than one year’s service when dismissed will not prevent the WRC or the Labour Court from imposing liability on an employer under the Industrial Relations Act 1969 for a dismissal that is deemed unfair. In this case, the failure of the employer to adhere to its own procedures resulted in it being found liable for a dismissal that was deemed to be unfair.

It is also an important reminder to employers that a claim under the Unfair Dismissals Acts is not the only option available to workers who believe that they have been unfairly dismissed.

While awards under the Industrial Relations Acts are not legally enforceable against an employer, employers with a significant union presence, particularly those in the public sector, will find it difficult to side step the moral authority of the Labour Court. A refusal by an employer to be bound by a Labour Court decision could create unexpected industrial relations consequences by, for example, increasing worker disaffection or adversely affecting staff morale.

For more information on disciplinary procedures, please contact a member of our Employment Law & Benefits team.

This post originally appeared on Mason Hayes & Curran’s  website here on the 12 April 2017

 


Mason Hayes & Curran is a business law firm with 80 partners and offices in Dublin, London, New York and San Francisco. Our lawyers give more than quality technical advice. Our advice is grounded in wisdom gained by combined experience. It is commercial and strategically informed. We deliver it quickly and clearly. https://www.mhc.ie/

 


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