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 PROBLEMS
WITH EMPLOYEES AND REDUNDANCY
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Employment Relations Problems
From time to time, the employer and the employee may have disagreements that can turn nasty. It is important that all regulations are followed, and all dealings are done in good faith, as set out in the Employment Relations Act, 2000.
If an employee believes there to be reason to file a personal grievance against their employer, they have 90 days’ grace after the incident (or the time they
became aware of it) to report it to their employer (ERS, 2004a). If the problem cannot be resolved in mediation (recommended), either party may go to the Employment Relations Authority, which will investigate the issue. If either party is displeased with the outcome, they may then take the issue to the employment court (BIZ, 2004k).
Employees do not have all the rights. They have the responsibility to do their job. You can expect them to show up on time to work, comply with all safety standards, do their job with skill and care, and comply with the workplace rules (BIZ, 2004a).
Termination of Employment
If all other avenues have been exhausted, you may need to look at dismissing a problem employee. To comply with the Employment Relations Act, 2000, all exchanges must be in good faith (see ‘good faith’ section). However, if there are substantial reasonable grounds for dismissal, and a fair process has been followed, the employer has the right to dismiss an employee (ERS, 2004c; Install Law, 2004a). Regardless of the seriousness of the grounds for dismissal, a fair investigation into the behaviour needs to take place, a number of ‘fairness’ guidelines need to be adhered to, and any specific instruction in the employment agreement needs to be followed (Install Law, 2004a).
Employers may find it easier to deal with employment termination by making employment agreements fixed term (as long as they have a legitimate reason to do so (e.g. a house building company employing workers for the duration of the building of a particular house) (Install Law, 2004b).
Serious Misconduct
For serious misconduct committed by the employee, the employer could be justified in dismissing them without warning (Install Law, 2004a). Examples of serious misconduct include bringing illegal substances to work, deliberately disobeying a reasonable/lawful instruction from an employer, disregarding work rules, assault, and theft (and other dishonest acts) (Install Law, 2004a). The employer should note that even if the employee has committed serious misconduct, they are still entitled to their holiday wages, unpaid wages, employment agreement entitlements etc (Install Law, 2004a).
Poor Performance/Less Serious Misconduct
If the employee has merely performed poorly at work or has committed misconduct of a less serious nature, the employer cannot terminate the employee without prior warnings (Install Law, 2004a). The general procedure to follow is an oral warning, a formal written warning, a final written warning and then a dismissal (Install Law, 2004a). Substantial grounds for dismissal must exist, and the employer should be able to demonstrate that they have been fair and reasonable, and there is a genuine reason for the dismissal (not just a ‘personality conflict’) (BIZ, 2004e).
Strikes and Lockouts
Striking and lockouts can be legal if the issue that employees are protesting over is related to a health and safety issue, or bargaining for a collective agreement (BIZ, 2004k). In some industries (e.g. nursing) employees should look at the ethical repercussions in striking (e.g. people could die). During striking, an employer may suspend workers if there is no work available due to the strike, but there are certain restrictions on employing replacement workers (BIZ, 2004k). If a strike or lockout occurs (legal or otherwise), it must be kept on record and the Department of Labour must be informed (BIZ, 2004m).
Redundancy
An employer must have genuine reasons (e.g. change in the market) to make an employee redundant, and all dealings must be in good faith (Install Law, 2004c). It is up to the employer what these reasons for redundancy are (the courts will generally not question their judgement on this matter, so long as the reason for redundancy is for actual commercial reasons, not because of an employee’s poor work performance, for example) (see above) (Install Law, 2004c). As per usual, if the employment agreement specifies procedures for making employees redundant, these need to be followed (Install Law, 2004c).
Employers are under no legal obligation to give any compensation to employees whom they make redundant, unless the employment agreement specifies so (Install Law, 2004c). However, if you do pay compensation (even though the employment agreement does not specify so) and the employee does take you to court, the courts will look more favourably on you (BIZ, 2004f).
Technical Redundancy
If employers offer compensation through redundancy, it is recommended that these employment agreements exclude ‘technical redundancies’ from compensation. A technical redundancy is when a business is sold, and because employment contracts cannot be automatically transferred from the old owner to the new, employees are ‘technically’ made redundant (even though they continue to be employed), and are therefore entitled to their redundancy compensation as set out in the employment agreement. Specifically excluding technical redundancies from the employment agreement solves what some may call this ‘legal loophole’ (Install Law, 2004c).
For a list of references, click here.
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