Redundancy, Unfair Dismissals and Terms and Conditions of Employment Contacts

1
Redundancy, Unfair Dismissals and Terms and
Conditions of Employment Contacts

• Presented by David J. Pearson
• G.J. Moloney Solicitors
• City Quarter
• Lapps Quay
• Cork

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Redundancy Defined

• The proposed redundancy must be wholly or
  mainly attributable to one of the following
• Cessation of or relocation of business
• Cessation of or diminished requirement for the
  work undertaken
• A decision to carry on the business with fewer
  employees
• A decision to reorganise work and the employee is
  no longer required because s/he is not
  sufficiently qualified or trained or another
  employee is better qualified/trained to do the
  work
• Characteristics of a genuine redundancy
• Impersonality
• Change

3
Practical Considerations

• Reasonable alternatives to redundancy
• Reduction in salaries
• Short-time
• Career Breaks
• Lay-offs
• Voluntary Redundancy
• Recording the business rationale behind any
  decision to implement redundancies

4
The Selection Process

• Employers must decide on the mechanism for
  selecting affected employees
• Is there a company policy or collective agreement
  in place prescribing the selection methodology
  such as last in, first out?
• Have there been any previous redundancy actions
  by the employer from which a practice may be
  applied by virtue of custom and practice?
• Employers should be mindful of any historical HR
  issues with affected employees

5
Notice Requirements

• A Redundancy situation does not reduce or qualify
  an employees statutory rights or contractual
  entitlements
• Contractual/statutory notice periods must be
  observed by the employer
• The Redundancy Acts provide for a 2 week notice
  period to employees with 104 weeks service which
  cannot be paid in lieu
• Employers must provide employees with statutory
  notice of redundancy on Form RP50

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Statutory Redundancy Payments

• Employees must have 104 weeks service with
  employer before being entitled to a statutory
  redundancy payment
• Calculated as follows
• 2 weeks pay per year of service
• 1 additional weeks pay
• Excess days over complete years of service will
  count as part thereof
• Maximum weekly payment is subject to a ceiling of
  600
• Employer can claim a rebate of up to 60 from the
  Department of Enterprise, Trade Employment
• Employers may want to consider making ex gratia
  payments to affected employees to reflect years
  service but there is no legal obligation to do so

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Collective Redundancies

• Arise where an employer proposes to dismiss a
  minimum number of employees during a period of 30
  consecutive days
• 5 employees in a company employing 20 49
  employees
• 10 employees in a company employing 50 99
  employees
• 10 of the workforce in a company employing 100
  299 employees
• 30 or more employees in a company employing in
  excess of 300 employees
• The number of employees in a workplace the
  average number employed in the 12 months
  preceding the date on which the first dismissal
  takes place
• Does not include employees dismissed due to the
  expiry of a fixed term contract

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Collective Redundancies

• Consultation
• At least 30 days in advance of first notice of
  dismissal
• Avoiding the proposed redundancies
• Reducing the numbers affected
• Mitigating their consequences
• The basis on which it will be decided who will be
  made redundant
• Information
• Reasons for the redundancy
• Number and descriptions of employees affected
• Number and descriptions of employees normally
  employed
• Period during which redundancies will be
  implemented
• Selection criteria
• Method for calculating redundancy pay

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Collective Redundancies

• Notification
• Minister for Enterprise Trade Employment at
  least 30 days before the date of the first
  dismissal

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Exceptional Collective Redundancies

• Introduced by the Protection of Employment
  (Exceptional Collective Redundancies and Related
  Matters) Act, 2007
• Greater protection to employees in light of Irish
  Ferries dispute
• Dismissed employees are replaced by new employees
  whose terms and conditions of employment are less
  favourable to the employee
• The collective redundancy can be referred to a
  Redundancy Panel for consideration
• Minister for Enterprise, Trade Employment can
  refuse to pay the 60 statutory rebate

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Unfair Dismissal

• All dismissals are deemed unfair
• The dismissal must be based on substantial
  grounds
• Adherence to fair procedures paramount
• Employee must have 52 weeks continuous service
• Genuine redundancy is a substantial ground to
  justify a dismissal

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Unfair Dismissal

• Burden of proof is on the employer
• Reasonable
• Fair
• Objective
• Proper procedures
• Acted reasonably
• Employment Appeals Tribunal
• Unfair Dismissals claim within 6 months
• Re-Instatement, Re-engagement, Compensation
• Max award is 2 years gross remuneration
• In cases of dismissal due to exceptional
  collective redundancies, max award is 5 years
  gross remuneration

13
Terms of Employment

• Fundamental contractual terms can only be changed
  with mutual consent of employer and employee
• Less fundamental changes can be made unilaterally

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Codes of Practice

• Labour Relations Commission Code of Practice on
  Grievance and Disciplinary Procedures (S.I. 146
  of 2000)
• Labour Relations Commission Code of Practice
  detailing Procedures for Addressing Bullying in
  the Workplace (S.I. 17 of 2002)
• Equality Authority Code of Practice on Sexual
  Harassment and Harassment (S.I. 78 of 2002)
• Health Safety Authority Code of Practice for
  Employers and Employees on the Prevention and
  Resolution of Bullying at Work (in accordance
  with Section 60 of the Safety, Health Welfare
  at Work Act, 2005)

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Relevant Contacts

• Employment Appeals Tribunal Health Safety
  Authority
• Davitt House The Metropolitian Building
• 65a Adelaide Road James Joyce Street
• Dublin 2 Dublin 2
• Tel. [phone] Tel. [phone]
• Fax. [phone] Fax. [phone]
• Web. www.eatribunal.ie Web. www.hsa.ie
• Labour Relations Commission Labour Court
• Tom Johnson House Tom Johnson House
• Haddington Road Haddington Road
• Dublin 4 Dublin 4
• Tel. [phone] Tel. [phone]
• Fax. [phone] Fax. [phone]
• Web. www.lrc.ie Web. www.labourcourt.ie

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Relevant Contacts

• Equality Authority Equality Tribunal
• 2, Clonmel Street 3, Clonmel Street
• Dublin 2 Dublin 2
• Tel. [phone] Tel. [phone]
• Fax. [phone] Fax. [phone]
• Web. www.equality.ie Web. www.equalitytribunal.i
  e