1. Lecture – Wrongful & Unfair Dismissal

2. Definitions Summary dismissal – dismissal of an employee without giving the notice to which the employee is entitled by virtue of the contract of employment. Wrongful dismissal – dismissal of an employee without justification, which is, in effect, a repudiation of the contract. Breach of an express or implied term of the employment contract. Unfair dismissal – defined in s.1 of Unfair Dismissals Acts 1977-2007. Constructive dismissal – indirect dismissal as where, e.g. the employer unilaterally changes the terms of the relationship so that an employee has virtually no choice but to resign.

3. Common Law – Summary Dismissal Employer has common law right to dismiss employee without providing the requisite notice that the employee is entitled to by virtue of the contract of employment. This can be done where the contract expressly authorises summary dismissal, or where employee is guilty of serious professional misconduct. Decision to dismiss must be effectively communicated to the employee. Dismissal on grounds of serious professional misconduct is determined by the nature of the job in question & the terms of the contract.

4. Serious Professional Misconduct Difficult to distinguish between misconduct that warrants dismissal & that which would warrant a temporary suspension/ severe warning/ reprimand. Glover v B.L.N Ltd. [1973] I.R. 388 at 405, per Kenny J: “It is impossible to define the misconduct which justifies immediate dismissal… There is no fixed rule of law defining the degree of misconduct which will justify dismissal…. What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule. Similarly, all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate. And the standards to be applied in deciding the matter are those of men and not of angels.”

5. Serious Professional Misconduct - 2 Misconduct must be known at the time of the dismissal – Carvill v Irish Industrial Bank [1968] I.R. 325. One single isolated act can amount to serious professional misconduct & justify instant dismissal e.g. fraudulent conduct; wilful disobedience of lawful & reasonable order; drunkenness at work; disclosing confidential information. Laws v London Chronicle Ltd. [1959] 1 W.L.R. 698 at 701: “one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions.” If the contract sets out grounds for immediate dismissal, these will supersede and displace common law right of summary dismissal. Glover v B.L.N. Ltd [1973] I.R. 388

6. Dismissal Procedures These may already be set out in the employment contract, relevant collective agreements or works rules. S.14 Unfair Dismissals Act 1977, as amended by s.9 Unfair Dismissals (Amendment) Act 1993 – new employees must be given a notice outlining the dismissal procedures. If there are no agreed procedures in place, the courts will imply minimum standards of fair procedure – rules of natural justice. - audi alteram partem – employer must hear employee’s side of the argument before deciding to dismiss - nemo iudex in sua causa – no one should be a judge in his own case. Public & private sector employment – Maher v Irish Permanent p.l.c [1998] 4 I.R. 302 – principles of fair procedure applicable to dismissals of persons in both sectors.

7. Fair Hearing Procedures set out in the contract must be followed. McLoughlin v Great Southern Railways Co. [1944] I.R. 479 Flynn v Great Northern Railways Co 89 I.L.T.R. 46 (1955) – due notice will not be a proper substitute for the procedures laid down. If no express reference is made to dismissal procedures in the contract, it will depend upon circumstances what fairness will require. Employees should be entitled to make oral representation to the person who is dismissing them. Generally entitled to be represented by others e.g. trade union official. Burden of proof is on the balance of probabilities. Rules of evidence not applicable.

8. Employer’s Power to Dismiss at Common Law Hickey v The Eastern Health Board [1991] 1 I.R. 208 Supreme Court held that the rules of natural justice regulating dismissal for misconduct had no application where the dismissal was for reasons other than misconduct. Sheehy v Ryan [2004] ELR 87 The High Court reaffirmed that an employer was not obliged to have regard to fair procedures in dismissing an employee, other than where there was an issue of misconduct.

9. Remedies for Wrongful Dismissal Damages – principal remedy. May have a claim for unfair dismissal under the 1977- 93 Acts but this will preclude action for damages. Declaration that dismissal was unlawful – Kingston v Irish Dunlop Co Ltd. Injunction restraining dismissal – exception. Nature of employment relationship based on ‘mutual confidence’ Public sector employees could seek a judicial review. Industrial Action.

10. Unfair Dismissal Defined in s.1 Unfair Dismissals Act 1977: “(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances, in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.”

11. Unfair Dismissal Plaintiff must have been dismissed. Unilateral termination by the employer – employer makes clear that the contract of employment has/shall come to an end. The employee does not have to be given due notice of dismissal. Fixed term or specified purpose contracts – dismissal is deemed by Unfair Dismissals & Redundancy Payments Acts to have taken place once contract has expired & not been renewed. Constructive dismissal – where the employee is entitled to terminate the contract due to the employer’s conduct. Dismissals after taking statutory leave will be deemed unfair unless there were substantial grounds for justifying them – Maternity Protection Acts 1994 & 2004, Adoptive Leave Act 1995, Parental Leave Act 1998, Carer’s Leave Act 2001.

12. Continuity of Employment To benefit from statutory rights employee must have been in continuous employment on a full-time basis by the employer for a specified period. 1 year – Unfair Dismissals Acts 1977 -1993 2 years – Redundancy Payments Acts 1967-1979. Date of commencement – need to ascertain when employee began working. Date of dismissal – when the employment relationship came to an end. Considers the requisite notice for dismissal. For fixed term contracts, dismissal occurs on date contract expires/ purpose ceases. Presumption of continuous employment from date employment commenced to date it ceases. Special provisions for continuity are contained in the legislation on maternity, adoptive, parental & carer’s leave. Special rules for continuity of employment exist when employees are on strike/ have been locked out/ engaged in some form of industrial action.

13. Situations Where Continuity Will Not Be Broken “Umbrella” contract – e.g. work on a ship – Hellyer Bros Ltd v McLeod [1987] 1 W.L.R. 726. Immediate re-employment. Avoidance technique – if dismissed employee is re- employed by the same employer within 26 weeks of dismissal, his continuity of service is not regarded as broken if it is shown that the employer’s objective was wholly/partly to avoid such liability. Lay-off – temporary severing of relations in anticipation that worker will be re-employed in not too distant future. Transfer of business – continuity carried over to new employer.

14. Continuity & Part-Time Employment Dismissal legislation applies if you work for at least 8 hours a week. Change brought about by the Worker Protection (Regular Part-time Employees) Act 1991. Redundancy Payments Acts do not apply to any person who works less than 8 hours a week. Bartlett v Kerry C.C. (UD 349/86) - firemen on call constituted working hours. Limerick Health Authority v Ryan [1969] I.R. 194 – midwife sought redundancy compensation. Kenny J. held that the then 18 hours minimum “does not apply when the employer does not or cannot specify the hours during which the employee is to do the work and when its nature requires that the person employed has to be available to do it at all times.”

15. Absences & Continuity of Service Schedule 1, paragraph 10 of the Unfair Dismissals Act 1973 & Schedule 1, paragraph 8, Redundancy Payment Act 1967 provide that a period of absence due to a lay off, sickness or injury or otherwise “by agreement with his employers” shall count as a period of service. Not more than 26 weeks absence on these grounds, between consecutive periods of employment, can be so counted. Special provisions for continuity are contained in the legislation on maternity, adoptive, parental & carer’s leave. Special rules for continuity of employment exist when employees are on strike/ have been locked out/ engaged in some form of industrial action.

16. Notice & Reasons Statutory right to minimum notice of the dismissal and a statement of reasons in writing. Employees have a right to a minimum period of paid notice of dismissal – s.4 Minimum Notice and Terms of Employment Act 1973. Exclusions from scope of legislation: established civil servants, members of permanent Defence Forces, Garda Siochána, merchant seamen, family & domestic employments, those who work for less than 8 hours a week. Length of notice depends upon period of service – minimum notice of 1 week for 13 weeks continuous employment. Maximum notice period of 8 weeks for those employees with 15 years or more continuous service.

17. Notice Periods The notice may be extended weekly if employer finds that there is work for an additional period. Bolands Ltd v Ward [1988] I.L.R.M. 382 1973 UD Act, Schedule 2, para.1 – entitlement to be paid during the notice period even if he does not do any work. Irish Leathers Ltd v Minister for Labour [1986] I.R. 177 S.5(3) – obligation to pay remuneration during the requisite period is rendered peremptory by stipulating that any provision in a contract that attempts to exclude or limit this right is void. S.14(4) UD Act 1977 entitles employee to be given written particulars of principal grounds for dismissing him. These reasons must be given within 14 days of employee’s request for reasons.

18. Unfair Dismissal Legislation introduced to protect employees against arbitrary dismissal decisions & to reduce number of industrial disputes. Unfair Dismissals Acts 1977 – 1993 do not displace common law claim for damages. Require locus standi – 1 years continuous employment. Excluded from protection are public sector workers, part- time workers, persons over retirement age, close family, trainees, fixed term/specific purpose contracts. Pursuit of alternative remedy will exclude employee from claim under legislation.

19. Dismissal S.6 – misconduct, inability to do job & redundancy constitute dismissal. S.6 – unfair dismissal will be dismissal on grounds of trade union membership & activities, religious/political opinions, race, colour, sexual orientation, member of travelling community, age, pregnancy, maternity leave, unfair redundancy. Question is whether reasonable employer would have dismissed employee in same circumstances – Bunyan v United Dominions Trust (Ireland) Ltd [1982] I.L.R.M. 404. Burden of proof is on the employer, unless employer can show that there were substantial grounds for justifying the dismissal. Burden of proving that dismissal on grounds of trade union membership etc is on the employee.

20. Justifying Dismissals S.6(4) sets out grounds that employer can use to justify dismissal: Misconduct – reasonableness test. Incapacity for the job – account must always be taken of the employer’s apparent failure to detect defect at hiring stage & by not remedying it by appropriate training. Redundancy – even if there was a redundancy the employee may succeed in a claim under the Unfair Dismissals Acts on grounds that he was unfairly selected to be made redundant. Other substantial grounds – Flynn v Power [1985] I.R. 648

21. Remedies S. 8(2)(a) - Notice of claim must be made within 6 months of date of dismissal. Claim can be made to a rights commissioner or the Employment Appeals Tribunal. Claimant must be in continuous employment for at least 52 weeks prior to the dismissal date. Re-instatement – claimant gets his old job back as if he had never been dismissed. No break in continuity. Re-engagement – re-employed by the employer either in the same job or in a suitable different job. Compensation – up to a maximum of two year’s normal remuneration.

22. Redundancy Redundancy Payments Acts 1967-79 – enacted to make it easier for employers to reorganise their businesses by guaranteeing substantial lump sum payments to workers who stood to lose their jobs in the reorganisation. Legislation requires that an eligible employee who is made redundant be paid a lump sum, the amount determinable according to his salary and seniority. Employee must have continuity of service – 104 weeks in full-time/part-time regular employment – working week. Not applicable to anyone who works less than 8 hours a week, pensioners, close family/domestics.

23. Redundancy – 2 To claim compensation employee must have been dismissed by reason of redundancy. – s.7(1) 1967 Act. S.2(1) 1967 Act – defines date of dismissal as date on which dismissal notice given expires; where notice of dismissal is not given, the dismissal date is when the termination took place or fixed term contract expired. Very extensive definition of what constitutes redundancy under s.7(2) 1967 Act. Burden of proof is on the employer to show that the employee was not dismissed on account of redundancy. S.7(1) 1967 Act – right to lump sum payment once plaintiff dismissed ‘by reason of redundancy’.

24. Redundancy - 3 Redundancy notices & certificates – minimum 2 weeks’ written notice of proposed redundancy must be given to eligible employees – eligible if in continuous employment for 2 years’. 2 weeks’ notice must be given to the Minister for Labour. Any employee with less than 2 years’ continuous employment must be supplied with a redundancy certificate before they can be dismissed. ‘Collective redundancies’ – at least 30 days notice must be given to the Minister for Labour. S.7,1979 Act – entitlement to paid time off for eligible employees to look for new job in the last 2 weeks of redundancy notice period.

25. Lump Sum Payments S.24, 1967 Act – a claim must be made to the employer within 30 weeks of date employee was dismissed/ contract otherwise terminated. Governed by Third Schedule to 1967 Act as amended. Amount calculated by referring to ‘continuous employment’ and ‘normal weekly remuneration’. Number of years (number of weeks continuous service divided by 52) x ½ normal weekly remuneration (16-41 years old) [full normal weekly remuneration for over 41 year olds]. Also entitled to additional one week’s remuneration.

26. Dismissal and Probation Rules of Natural justice Meet regularly Inform the employee of consequences Provide support Due process Unfair Dismissals Acts 1977, 2001 Industrial Relations Act 1990

27. Probation and Managing Performance Have a standard procedure Key criteria for review Attendance, ability to do the job, interpersonal skills, flexibility Regular meetings Written records Train Managers Good feedback Provide support and training

28. Practical Measures Dismissal procedures in place. Notify all employees of these procedures. Follow the procedures set down. Provide the requisite notice. Fair hearing. Representation at hearing. Proportionality of the penalty with the offence.

29. Unfair dismissal – recent case law JVC Europe Limited v Jerome Ponisi [2011] IEHC 279 Mr Ponisi was dismissed from employment in 2008 on the grounds of redundancy. He was due to retire in October 2011 when he turned 65. He had been employed by the company as a general manager since September 1991. He was informed in March 2008 that his position along with two others were no longer required. However, three “new” posts were being created by the company. One of which, sales manager for Ireland, was very similar in nature to Mr Ponisi’s job. High Court found that this was not a genuine redundancy on the basis of the evidence presented – notably Mr Ponisi was asked to apply for the new role (with the less pay and status). High Court ruled that Mr Ponisi had been unfairly dismissed and awarded him the maximum of two year’s pay plus costs.

30. Case law Circuit Court decision – February 2008 – a nightclub manager was found to have been unfairly dismissed from his job. Awarded €80,575 in compensation (based on losses sustained over a 31 week period that the plaintiff was out of work).

31. Case Law Walsh v Miller Hyland – claimant alleged to have been involved in certain incidents in a Montessori that led her employer to believe that she was not performing her functions satisfactorily. Claimant initially received a written warning from her employer. Claimant was not given any right of reply to this and was dismissed the following day. Awarded €7,500 in compensation.

32. Recent EAT decisions Flavin v David Morrissey – issue concerned whether the claimant dismissed for absenteeism or because of her pregnancy. EAT held that the claimant was unfairly dismissed for reasons connected with her pregnancy rather than her absenteeism from the shop. Claimant was awarded €2880 in compensation.

33. Recent EAT decisions O’Brien v Mundania Co. Ltd – claimant dismissed for serious dereliction of duty in leaving the door to the licensed premises open during the night. EAT held that dismissal was justified but did not amount to misconduct to deprive him of his statutory right to notice. Awarded €1,493.24

34. Recent EAT decisions McAndrew v Eagle Star Life Assurance – employee’s inappropriate use of internet. Other members of staff involved were dealt with by way of internal disciplinary measures. Claimant dismissed. EAT held that the penalty imposed was disproportionate to the offence & deemed the claimant to have been unfairly dismissed. Claimant awarded €6,000.

35. Recent EAT decisions Duff v Brian Muldoon & Sons – claimant employed as a chef – issues relating to claimant’s attitude & behaviour at work. Proper procedures were not followed. Claimant was 4 month’s pregnant when she was dismissed. EAT found that she was unfairly dismissed. Claimant awarded €15,780 under the Unfair Dismissals Acts 1977-2001 and €1,058 under the Minimum Notice and Terms of Employment Acts 1973-2001.

36. Pregnancy Discrimination & Dismissal

37. Discrimination - Pregnancy & Maternity From the case law, it would appear that the ECJ is becoming increasingly unsympathetic to employers who dismiss or refuse to employ a woman for reasons connected with pregnancy and childbirth. Case C-177/88 Dekker v. VJV-Centrum [1990] ECR 3941. Defendant employer had withdrawn his offer of employment to the claimant when he discovered she was pregnant. Employer argued his action was justified as her absence during maternity leave would not be covered by insurance & he could not afford to pay for a replacement worker. ECJ held that the refusal to employ a woman on the grounds of her pregnancy constituted direct discrimination on the grounds of sex. Such refusal could not be justified on the basis of financial detriment to the employer.

38. Dismissal & pregnant employees Case C-179/88 Handels- og Kontorfunktionaerernes Forbund I Danmark (Hertz) v Dansk Arbedjdsgiverforening[1990] ECR I- 3979. The ECJ had to consider if the dismissal of a pregnant employee was also in contravention of the Equal Treatment Directive. ECJ held that the dismissal of a female employee because of her pregnancy amounted to direct discrimination on the grounds of sex. The Court also drew a clear distinction between pregnancy and illness: the latter is not an issue that falls under the protection afforded to pregnant employees even where the illness is attributable to pregnancy but manifests itself after the maternity leave. The ECJ held that there is no reason to distinguish such an illness from any other illness.

39. Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb./Opf, e.V [1994] ECR I-01657 Mrs Habermann-Beltermann, had applied for a job as a night attendant in home for the elderly. She was appointed to the post and signed the employment contract on 23 March 1992. The commencement date of the contract was 1 April 1992. The employment contract was for an indefinite period and one of the specific terms of the contract was that Mrs Habermann- Beltermann was to undertake night-time work only. From 29 April to 12 June 1992, Mrs Habermann-Beltermann was off work due to illness. According to the medical certificate dated 29 May 1992 she was pregnant. The pregnancy commenced on 11 March 1992, although she was unaware that she was pregnant when she signed her contract of employment. Her employer sought to terminate the contract of employment because of the prohibition within German domestic law that pregnant employees could not be assigned night-time work and the national court held that this statutory prohibition rendered the employment contract void.

40. Case C-421/92 Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb./Opf, e.V [1994] ECR I-01657 Thus, the employer was not seeking to dismiss the employee solely on the grounds of her pregnancy: rather it was as a consequence of the legislation in place to protect pregnant workers. The ECJ ruled that despite the existence of this statutory prohibition, the employer could not dismiss Mrs Habermann-Beltermann on the grounds of her pregnancy as her contract was for an indefinite period, therefore the statutory prohibition would not apply to the entire duration of her contract of employment. Therefore, to dismiss her because of her temporary inability to perform her contract, due to pregnancy, would contravene the provisions of the Equal Treatment Directive.

41. Webb v. EMO Air Cargo (UK) Ltd [1992] 2 All ER 43 Claimant engaged to replace another employee who had become pregnant. 2 weeks after accepting the post she discovered she too was pregnant. She was dismissed when she informed the employer of this fact. ECJ held that it contravened the Equal Treatment Directive to dismiss an employee on account of her becoming pregnant.

42. Availability for work Could pregnant women be dismissed on the basis that their pregnancy constitutes too large a proportion of the contract? Case C-109/00 Teledenmark. Woman employed on 6 month fixed term contract, 2 months spent on training course. After commencing employment, woman informed employer that she was pregnant. She was dismissed. Employer argued that woman could not perform substantial part of her duties & that in failing to mention pregnancy before she was employed, she had violated the principle of good faith.

43. Availability for work - 2 Case C-109/00 Teledenmark – ECJ held: ‘Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of economic loss incurred by the company as a result of her absence, because of pregnancy, whether the contract was concluded for a fixed term of for an indefinite period has no bearing on the discriminatory character of the dismissal. In either case, the employee’s inability to perform her contract of employment is due to pregnancy.’ Case C-320/01 Busch – ECJ basing its judgment on Teledenmark, confirmed that a woman is under no duty to tell an employer she is pregnant prior to accepting a job offer or returning to work.

44. Case C-438/99 Jimenez Melgar v Ayuntamiento de Los Barrios [2001] ECR I-6915. The ECJ confirmed that Art 10 of the Pregnancy Directive prohibits the dismissal of pregnant workers, irrespective of the duration of the employment contract. Here, the ECJ had to consider whether the non-renewal of a fixed-term contract was justifiable under Art 10 of the Directive where the employee in question was pregnant. The ECJ ruled that the non-renewal of a fixed-term contract does not automatically breach Art 10 of the Pregnancy Directive: it is only where it is evident that the reason for the non-renewal of the fixed-term contract is the employee’s pregnancy, i.e. where the non-renewal could amount to a refusal to employ the pregnant worker, that the Article is breached. As such, the non-renewal would constitute direct discrimination on the grounds of sex in contravention of the Equal Treatment Directive. The ECJ’s decision in Jimenez Melgar is a clear signal that Article 10 of the Pregnancy Directive 92/85 supersedes the ECJ’s earlier decisions on pregnancy related dismissals under the Equal Treatment Directive. Art 10 of the Pregnancy Directive prohibits the dismissal of workers during the period from the beginning of pregnancy until the end of maternity leave, save in exception circumstances unconnected with pregnancy.

45. Pregnancy-related illness Pregnancy Directive (Directive 92/85, OJ [1992] L348/1 prohibits the dismissal of workers during the period from the beginning of their pregnancy to the end of their maternity leave, save in exceptional circumstances unconnected with their pregnancy. Case C-394/96, Brown v. Rentokil – ECJ held that a woman could not be dismissed at any time during her pregnancy for absences arising from pregnancy-related illnesses.

46. Pregnancy, Equal Treatment & EC Law To reject a job applicant on the grounds of pregnancy would contravene the Equality Act, 2004 unless the job is one of the very few where pregnant women are not allowed to work on account of health risks. Under the Unfair Dismissals Acts 1977-93, employee’s dismissal is deemed to be unfair where done on the grounds of her pregnancy unless there were substantial grounds justifying that dismissal.

47. Pregnancy cases in the Labour Court Marie Inoue (claimant) v. NBK Designs Ltd (respondent), Labour Court EED0212, 25 November 2002 [2003] ELR 98 Anne Mason (claimant) v. Winston’s Jewellers (respondent), Labour Court EED20/2002 (5 December 2002) [2003] ELR 108

48. Pregnancy Cases – Employment Appeals Tribunal Gleeson v L’Oreal Luxury Products Ltd, 29/05/2008. Question as to whether the claimant was made redundant on the grounds of her pregnancy and need to take maternity-leave or whether a genuine redundancy situation existed. The claimant had been absent for a from April due to pregnancy-related illness. Claimant’s position was made redundant later that year.