The Gazette 1977

GAZETTE

AUGUST/SEPTEMBER

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.

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 132