I can dismiss an employee at any time before they have 12 months service-right?

There is a perception amongst many employers that once an employee is still on probation or has less than one years service that an employee who is dismissed has no recourse against the employer.  However an employee with less than one years’ service can bring a claim under the Industrial Relations Act, 1969 (as amended) alleging unfair dismissal. There is no service qualification under this Act. A claim under this Act may either be referred to a conciliation officer of the Labour Relations Commission or to a Rights Commissioner and subsequently on appeal to the Labour Court. However, it is worth noting that, in general, the compensation awarded by Rights Commissioners/the Labour Court under the Industrial Relations Acts tends to be lower than awards of the Employment Appeals Tribunal under the Unfair Dismissals Act and, strictly speaking, is not legally enforceable.

What about an employee on probation?

Contracts of employment that provide for a probationary period can be a very useful tool for employers. A new employee’s performance can be evaluated during the probationary period and, based on the strength of the performance, the employer can make a decision on the employee’s continued employment. 

It is important to note that the placing of a new employee on probation has no legal effect on the employment relationship and that a probationary period itself has no legal standing. A common misconception amongst many employers is that they are entitled to dismiss an employee who is on probation without affording that person the benefit of fair procedures and natural justice. That is not the case.

Unfair Dismissals Acts

The Unfair Dismissals Acts, 1977–2001 entitle employees covered under the Acts to bring a case to the Employment Appeals Tribunal (the “EAT”) in the event that they are unfairly dismissed. The EAT has jurisdiction, under those Acts, to award reinstatement, re-engagement or compensation (up to a maximum of two years’ remuneration). For an employee to be covered under the Unfair Dismissals Acts, he/she must have 12 months continuous service (except in the case of dismissal for pregnancy related matters or trade union membership activities, in which case a claim can be brought regardless of the length of service). This qualifying period lead many employers to believe that an employee with less than one years’ service has no entitlement to issue proceedings against his/her employer; however this is not entirely accurate.  An employer should also be aware that notice periods and accrued annual leave will be included in any calculation of 12 months service.

Other legislation

There is a perception amongst many employers that once an employee is still on probation or has less than one years service that an employee who is dismissed has no recourse against the employer.  However an employee with less than one years’ service can bring a claim under the Industrial Relations Act, 1969 (as amended) alleging unfair dismissal. There is no service qualification under this Act. A claim under this Act may either be referred to a conciliation officer of the Labour Relations Commission or to a Rights Commissioner and subsequently on appeal to the Labour Court. However, it is worth noting that, in general, the compensation awarded by Rights Commissioners/the Labour Court under the Industrial Relations Acts tends to be lower than awards of the Employment Appeals Tribunal under the Unfair Dismissals Act and, strictly speaking, is not legally enforceable.

Also whilst normally you must have at least 12 months’ continuous service with your employer in order to bring a claim for unfair dismissal. However there are important exceptions to this general rule. If you have less than 12 months’ continuous service you may bring a claim for unfair dismissal if you are dismissed for:

• Trade union membership or activity
• Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
• Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001. 

Alternatively, an employee (regardless of whether he/she is on probation) and who has been dismissed from his/her employment may issue proceedings at common law for wrongful dismissal/breach of contract in the civil courts (to include injunction proceedings). Again, there is no service requirement to bring such a claim.

Similarly, there is no service requirement for an employee to bring a claim under the Employment Equality Acts 1998–2004. Accordingly, in the event that an employee on probation believes that he/she was discriminated against on any of the nine grounds prohibited by those Acts, he/she may bring a claim of discrimination to the Equality Tribunal. Dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal. The maximum award of compensation that may be awarded in such a case is two years remuneration.

A probation clause in the contract – a word of caution

The wording of clauses in contracts of employment may sometimes give rise to a possible construction that the probationary period is, in itself, a fixed term within the contract. For example, if a contract were to state that “The first six months of this contract shall be a probationary period” and the employee was dismissed after one month, this may give rise to a claim that the employee is entitled to be paid the balance of five months’ salary. (There has been a District Court finding to this effect). Accordingly, prudent employers should insert a clause in to the contract of employment to the effect that the employment may be terminated by providing a specific period of notice.

Conclusion

The dismissal of any employee should be handled with care. Employers should never assume that they can dismiss or demote an employee on probation without giving that person the benefit of fair procedures and, importantly, an opportunity to improve. Many of the cases brought under the Industrial Relations Acts emphasise the clear need for correct and fair procedures to be followed, even during the probationary period

How to manage gross misconduct

What is misconduct?

Misconduct is behaviour that an employer deems inappropriate for an employee. It usually relates to an employee’s conduct during working hours and there are varying degrees of misconduct, ranging from minor misconduct to serious (gross) misconduct.

An employer may, in certain circumstances and after following appropriate disciplinary procedures, dismiss an employee because of the behaviour and in the Employment Appeals Tribunal  where an employer has followed a fiar proceudre they will have a good defence to a claim for unfair dismissal.

Employers should have a set of disciplinary rules and procedures which set out standards of conduct at work. Otherwise an employee may not know what is expected of him, also it may hamper an employer from taking steps to discipline (or punish) the employee. All employers should have a clear disciplinary procedure policy or provision in their contracts of employment or staff handbook explaining what will not be acceptable behaviour.

What is gross misconduct?

There is a general view that if an employee commits an act of gross misconduct an employer has the right to dismiss the employee without notice. However this does not necessairly mean that the employee can be dismissed on the spot; there is still an obligation for the employer to investigate allegations and carry out any dismissal in accordance with a fair procedure.

It is not possible to define all the areas which could constitute gross misconduct, however, they can include:

• fighting
• theft from the employer or colleagues
• fraud or falsifying work documents
• accessing and/or distributing pornographic emails or websites
• deliberately damaging company property
• serious bullying or harassment
• bringing the employer into serious disrepute
• serious infringement of health and safety rules
• serious failure to follow reasonable instructions.

As can be seen from the list above the common theme is that it must be an action that has a serious impact or consequence.

Employees should be made aware, either in their contract of employment or in disciplinary procedures what are the likely consequences if they break the guidelines the company has laid down in relation to their conduct, including dismissal.

Be Consistent

Employers must be consistent. If other employees have previously committed the same offence but have not been dismissed it may be difficult to justify dismissal on a subsequent occasion.

Employee’s rights

Generally speaking, if an employee has been with the employer for over a year they have unfair dismissal protection. Although employees have the right not to be dismissed for an unfair reason, the conduct of an employee is expressly stated to be a potentially fair reason to dismiss.

• Employees also have the right not to be discriminated against on the grounds as set out in the Equality Act namely, gender, family status, matital status, race, religion, disability, age sexual orientation or membership of the traveller community. This would include being singled out for a warning about their conduct or receiving harsher penalties than other employees would receive.
• Employees have the right not to be dismissed in breach of their contractual terms. For example, failure to follow a contractual procedure may result in a claim of breach of contract.
• Employees are entitled to be dismissed on notice (unless for gross misconduct). Failure to do so entitles the employee to claim damages for breach of contract. This type of claim is also called “wrongful dismissal”

What should an employer do if he suspects an employee of misconduct?

• The employer must investigate the matter fully (speak to witnesses, collect documentary evidence etc).
• The employer must also give the employee an opportunity to explain himself.
• The employee should sufficiently know what the case and evidence is against him before any hearing.
• Prior warning of the hearing date and that the disciplinary action is under consideration.
• Give the employee the opportunity to call witnesses.
• Inform the individual he has the right to be accompanied by a colleague (or a trade union official).
• Inform the employee he has the right of an appeal.

When will it be reasonable to dismiss for misconduct?

Even though an employer may have strong suspicions that an individual is guilty of misconduct, this may not be enough. Although an employer does not have to show an employee committed the offence “beyond all reasonable doubt”, there is a threshold that must be reached. In particular:

• The employer must believe that the employee is responsible for the conduct in question.
• The employer must have reasonable grounds for this belief.
• The employer must carry out as much of an investigation into the matter as is reasonable.

What if an employee is charged with a criminal offence?

• The employer does not have to wait for the outcome of Garda investigations or a criminal trial.
• The employer should hold its own investigation into the matter.
• The employee’s rights to have this matter investigated by his employer and to present his side of the story remain regardless of the fact that he is charged by the Gardai.

Out of office misconduct

Generally, employees will only be subject to the company’s disciplinary rules and procedures during their office hours or when they represent the company.

In certain circumstances an employee’s behaviour may be subject to the employer’s scrutiny if it is deemed to be likely to impact on the performance of his contract or the reputation of the employer. Out of office misconduct must be particularly serious to warrant disciplinary action and the behaviour should also relate to the employee’s ability (or perceived ability) to do his job.