Termination of Employment 3rd Edition by Alastair Purdy 1526524511 9781526524515

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ISBN 10: 1526524511

ISBN 13: 9781526524515

Author: Alastair Purdy

 The termination of employment is a complex legal area and can be a hazardous one for employers and HR professionals to navigate. This title clearly explains the legal aspects of employment termination, dealing with the notice that must be given, the forms that need to be filled out, the various options open to claimants and the penalties for non-compliance. The Third Edition considers key decisions including: – Zalewski v Adjudication Officer [2021] IESEC 24 – Minister for Justice, Equality and Law Reform v the Commissioner of an Garda Siochana [2017] IESC 43 – Grenet v Electronic Arts Ireland Ltd [2018] IEHC 786 – Baranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56 The book guides you through important developments to employment law in Ireland, such as the changes brought in by the Workplace Relations Act 2015 and the Workplace Relations (Miscellaneous Provisions) Act 2021. A new chapter dealing with the Protected Disclosures Act 2014 (whistleblowing legislation) is also included. This title is included in Bloomsbury Professional’s Irish Employment Law online service.

Termination of Employment 3rd Table of contents:

Chapter 1: The Institutional Framework

Workplace Relations Commission

Public hearings

Rules for Hearings

Non-statutory rules

Dismissal of frivolous and vexatious complaints by adjudication officer

Disposal by written submission only

Striking out cases that are not pursued

Process of hearing

Findings

Enforcement of WRC decisions

Labour Court

Role in termination of employment cases

Structure

Operational structure

Investigation methods

Labour Court Rules

Appeals

Labour Court submission

Withdrawal of claims

Enforcement of Labour Court decisions

Circuit Court

High Court

Costs/Fees/Charges/Refunds

Chapter 2: Minimum Notice and Terms of Employment Acts 1973–2005

Purpose

Application

Notice Period

Continuous Service

Computable Service

What Constitutes ‘Pay’?

Notice to Employers

Waiver and Payment in Lieu of Notice

Calculation of pay in lieu of notice

No Entitlement to Notice

Misconduct

Constructive dismissal

Resignation

Fixed-term/specified purpose contracts

Retirement

Incapability and notice

Lay-off/short-time working

Minimum Notice and the Payment of Wages Act 1991

Leave and Minimum Notice

Annual leave

Protective leave

Extending the Notice Period

Rights and Duties of Employees During the Notice Period

Notice must be Specific

Withdrawal of Notice

Disputes and Redress

Disputes

Redress

Wrongful Dismissal and Notice

Minimum Notice and Redundancy

Minimum notice in practice

Chapter 3: Unfair Dismissal

Preliminary Requirements

The complainant must be an employee

Contract of employment

The contract must be enforceable

Continuous service

Six-month/12-month time limit

The complainant must have been dismissed

Exclusions

Persons who have reached normal retirement age

Persons employed by a close relative in a private house or on a farm where both reside

Members of the Defence Forces

Members of An Garda Siochána

SOLAS trainees and statutory apprentices

Employees dismissed during a period of probation or training

Persons on fixed-term/specified purpose contracts

Persons covering for persons on protective leave or natal care

Persons covering for persons on adoptive leave

Persons ordinarily working outside the State

Employees dismissed while working for foreign embassies in Ireland

Onus of Proof

Exceptions where the onus of proof shifts to the employee

Unfair Dismissals

Membership of a trade union or involvement in trade union activities

Strikes and lockouts

Religious or political opinions

Race, colour or sexual orientation

Age

Pregnancy or connected matters

Dismissals contrary to the Adoptive Leave Acts 1995 and 2005

Membership of the Traveller community

Civil or criminal proceedings

Dismissals in Accordance with Acts Other than the Unfair Dismissals Act

Persons reporting child abuse

Dismissals and the Employees (Provision of Information and Consultation) Act 2006

Dismissals and the Health, Safety and Welfare at Work Act 2005

Dismissals and the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001

Dismissals contrary to the National Minimum Wage Act 2000

Dismissals contrary to the Standards in Public Office Act 2001

Dismissals Deemed Not to be Unfair

Capability, competence or qualifications of the employee

Conduct

Redundancy

Heat-of-the-moment resignations

Constructive Dismissal

And/or test

Unequivocal words

The contract test

The reasonableness test

Obligation to utilise the grievance procedure

Surveillance of Employees/Use of Private Investigators

Covert cameras

Covert recording of conversations

Use of private investigators for employment law and ‘crossover’ with personal injury litigation

Importance of Procedures

Reasonableness of the Employer’s Decision

Remedies

Compensation

Minimum four weeks

Ability to mitigate loss

Illness resulting from dismissal

Chapter 4: Fair Procedures and Natural Justice: Investigations and Disciplinary Hearings in the Workplace

Procedural Fairness

The employer’s disciplinary procedure

Rights to natural and constitutional justice

Suspensions

Delay and suspensions

Investigations

Terms of reference

Distinction between informal and formal investigations

Conflation of investigation and disciplinary procedures

Independent investigators

Disciplinary Hearings

Final written warnings

Representation

Expert witnesses

Probationary employees

Appeals

Chapter 5: Redundancy

Statutory Definition of ‘Redundancy’

Entitlement to a Redundancy Payment

Continuous service

Insurable employment

Aged over 16

Genuine redundancy

The right to a redundancy lump-sum payment by reason of lay-off or short time (Form RP9)

Employees wishing to leave their employment before their notice of proposed dismissal expires

Disentitlement to a Redundancy Payment

Alternative work

Misconduct

Refusal to take alternative employment

Change of location

Calculation of Statutory Entitlement

Calculation of a week’s pay for purposes of the Act

Reckonable and non-reckonable service

Maternity leave and additional maternity leave for redundancy calculation purposes

Parental leave for redundancy calculation purposes

Calculating ‘excess days’ in respect of redundancies notified/declared on or after 10 April 2005

Adoptive leave for redundancy calculation purposes

Parent’s leave for redundancy calculation purposes

Paternity leave for redundancy calculation purposes

Carer’s leave for redundancy calculation purposes

Career break leave

Collective Redundancies

Legislation

Collective redundancies and insolvency

Consultation

Failure to consult

Notification to the Minister

Records

Information and Consultation Act 2006 and redundancies

Redundancy and Unfair Dismissal

The redundancy must be genuine

‘Impersonality requirement’

Reasonableness of the conduct of the employer

Selection procedure (or criteria)?

Redundancy and a change of ownership

Practical Considerations

Time limit for claim

Notification timeline

Negotiations

Methods of calculating ex gratia redundancy payments

Labour Court – what should be discussed

Refusal to accept redundancy notice

Forms

Chapter 6: Taxation of Lump-Sum Payments

Introduction

Taxation of Lump Sums (Excluding Settlements and Awards Payable in Employment Cases)

Lump-sum payments exempt from tax

Lump-sum payments that qualify for tax relief

Standard capital superannuation benefit

Subsequent claims

Taxation of lump sums by employers

Time limits for claiming tax reliefs

Taxation Exemption for Settlements and Awards in Employment Cases

Exemption

Fire and rehire

Practical Advice for Employers

Structure of settlements

Importance of apportionment

Tax Treatment of Legal Fees in Employment Cases

Summary

Appendix I

Chapter 7: Wrongful Dismissal and the Employment Injunction

Introduction

Wrongful Dismissal and Unfair Dismissal

Wrongful Dismissal and the Industrial Relations Acts

The Employment Injunction

What is an injunction?

Principles applied by the courts

Interlocutory Injunctions in Employment Cases – Their Development

When are employment injunctions sought?

When will an injunction be granted?

When will an injunction not be granted?

Practical Considerations – Proceedings for Injunctive Relief

Where there is a statutory remedy

Interim injunctions

Interlocutory injunctions

Statutory injunctions

Plenary summons

Notice of motion

Grounding affidavit

Chapter 8: Discriminatory Dismissal: The Employment Equality Legislation

Introduction

Legislation

Employment Equality Acts 1998–2021

Practical Considerations

Referral forms

Defending a discrimination claim

Awards in discriminatory dismissal claims

Employees’ right to certain information

The Circuit Court

Appeals

Costs

Forms

Form EE2

Form EE3

Form 1 Circuit Court Employment Law Civil Bill

Form 4 Circuit Court Motion on Notice

Form 2 Defence to Circuit Court Civil Bill

Chapter 9: Dismissal and Employer Insolvency

Introduction

Effects of Various Types of Insolvency on the Employment Contract

Bankruptcy

Voluntary liquidation

Court official liquidation

Provisional liquidation

Receivership

Examinership

Insolvency and Priorities of Debts

Purpose of the Insolvency Act

Insolvency Legislation

Date of insolvency

What employees are covered?

Employee entitlements

Prerequisites for a valid claim

Relevant date

Which debts are recoverable?

Payment

Employer Insolvency in Practice

Employee forms

Employer forms

Payment of unpaid contributions to pension schemes

Transfer to the Minister of certain rights and remedies

Transfer of personal data in relation to insolvent employers in the United Kingdom

Complaints to the Workplace Relations Commission

Minister’s right to refuse an application

Offences

Forms

Chapter10: Protected Disclosures

Introduction

Relevant legislation

Understanding Protected Disclosures

Definition of a ‘protected disclosure’

Definition of ‘relevant information’

Definition of ‘relevant wrongdoing’

Definition of a ‘worker’

Reporting Procedures

Establishing reporting procedures

The process of making a disclosure

Managing Protected Disclosures

Protections afforded to employees

Civil claim for tort

Interim relief

Civil liability immunity

Offences

Compensation in the event of dismissal

Practical Considerations for Employers

Chapter 11: Transfer of a Business

Introduction

Application of the Regulations

Key definitions

There must be a transfer

Undertakings or parts of undertakings

Who is covered?

Employees’ Rights

Right to information and consultation

Employees’ representatives

Exceptions to the protection of rights in the event of a transfer

Dismissals

Dismissal by reason of the transfer

Dismissal for ‘economic, technical or organisational reasons’

Substantial change in working conditions

The transfer of a business and redundancy

Change of contractor/contracting out

Complaints and Remedies

Appeals

Injunctive relief

Practical Considerations

Due diligence

Human resources audit

Indemnities and warranties

Can employees agree changes prior to or at the time of transfer?

Picketing in the event of a transfer

Data protection issues

Draft Letters in the Event of a Transfer

Draft transferor letter

Draft transferee letter

Draft nomination form for employee representatives

Draft letter to staff representative regarding their appointment

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