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GAZETTE
AUGUST/SEPTEMBER
apprentice has well and truly served his apprenticeship?
Perhaps some of the existing affidavits and
declarations might be dispensed with. Perhaps all
Solicitors might be given the powers of Commissioners
for all but some kinds of affidavit. It is worth more than
just a thought.
Solicitors as Employers
The right of an Employer to terminate, subject to giving
statutory, contractual or reasonable notice, without
reason, the employment of any Employee has ended with
the Unfair Dismissals Act 1977. This Act provides that
an Employee who is held to have been unfairly dismissed
within the meaning of the Act must either be re-instated
(either in his old position or in another suitable position)
or compensated for any financial loss contributable to the
dismissal.
"Unfair Dismissal" is not defined in the Act. Instead,
all dismissals are deemed to be unfair unless the Employer
can show that there were substantial grounds justifying
the dismissal or that the dismissal resulted wholly or
mainly from one or more of the following causes:—
i) The capability, competence or qualifications of the
employee for performing work of the kind which he
was employed by the employer to do,
ií) The conduct of the employee.
iii) The redundancy of the employee, and
iv) The employee being unable to work or continue to
work in the position which he held without
contravention (by him or by his employer) of a duty
or restriction imposed by or under any statute or
instrument made under statute.
Thus, where an employer now dismisses an employee
and this Act applies to such dismissal, the onus is on the
employer to show that the dismissal resulted wholly or
mainly from one of the above four cases or there were
other substantial grounds justifying the dismissal. It is
most likely that an employer seeking to dismiss an
unsatisfactory employee will seek to justify such dismissal
under paragraph (i) or (ii) above. It would thus seem
advisable in the future that an employer set out clearly at
the time of employment of a new employee the work
which he is being employed to do and that a letter of
appointment containing this description and other main
conditions of employment be given to all new employees.
In this connection, there is of course an obligation on
every employer, under section 9 (5) of the Minimum
Notice and Terms of Employment Act 1973 to furnish to
each employee within one month of the commencement of
the employment a written statement containing the
following particulars:
i) The date of commencement of the employment,
ii) The rate or method of calculation of his
remuneration,
iii) The length of interval between the times at which
remuneration is paid, whether weekly, monthly or any
other period,
iv) Any terms or conditions relating to hours of work or
overtime,
v) Any terms or conditions relating to
a) Holidays and holiday pay,
b) Incapacity for work due to sickness or injury and
sick pay,
c) Pensions and Pension Schemes,
vi) The period of notice which the employee is obliged to
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give and entitled to receive to determine his contract
of employment, or (if the contract of employment is
for a fixed term) the date on which the contract
expires.
The Unfair Dismissals Act 1977 does not apply to
certain types of contract of employment. Many of these
are not of interest as they relate to special categories of
employment particularly in the public service. There are
three categories of contract excluded which are of
significant practical importance. The Act does not apply
to:-
i) A dismissed employee, who at the date of his
dismissal, had less than one year's continuous service
with the employer who dismissed him (except where
the dismissal results wholly or mainly from the
pregnancy of the eihployee). Continuous service is
computed in accordance with the first schedule to the
Minimum Notice and Terms of Employment Act
1973.
ii) Dismissal during the period when the employee is on
probation or undergoing training, provided his
contract of employment is in writing, the duration of
the probation or training is one year or less and is
specified in the contract,
iii) a) Dismissal where the employment was under a
contract of employment for a fixed term made
before 16th September 1976 and the dismissal
consisted only of the expiry of the term without it
being renewed under the same contract, or
b) Dismissal where the employment was under a
contract of employment for a fixed term or 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) and that the dismissal consisted
only of the expiry of the term without its being
renewed under the said contract or the cesser of
the purpose and the contract is in writing, or
signed by or on behalf of the employer and the
employee and provides that this Act shall not
apply to a dismissal consisting only of the expiry
of cesser aforesaid.
The only practical difference between (i) and (ii) above
would appear that under (i) dismissal on grounds of
pregnancy during the first year of employment would
bring the dismissal within the Act whereas under (ii) the
Act would not apply to a dismissal on these grounds
during a period of probation. It may thus be advisable in
the employment of new female employees to include in a
written contract of employment a probationary period up
to one year.
An employee who has been dismissed in circumstances
to which the Act applies may appeal to the Employment
Appeals Tribunal (formally the Redundancy Appeals
Tribunal) or the Rights Commissioner who may make
orders for the reinstatement of the employee to his former
position, the re-engagement of the employee by the
employer to a different position or the payment by the
employer to the employee of such compensation (not
exceeding an amount of 104 weeks remuneration) in
respect of any financial loss incurred by him and
attributable to the dismissal as is just and equitable having
regard to all these circumstances.
An excellent lecture on the Unfair Dismissals Act 1977
and other related topics was given by Ercus Stewart,
Barrister-at-Law, to the Society in Tralee in April last.
The script of this lecture is available.