Dismissing an Employee

Karen Walsh

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The term "snowflake generation" was one of Collins Dictionary's 2016 words of the year. Collins defines the term as "the young adults of the 2010s, viewed as being less resilient and more prone to taking offence than previous generations".

Recently it was reported that some farmers are refusing to take on "snowflake" veterinary students who do not have a farming background. Other business owners have indicated this also. A pig farmer based in north Cork said he would only take on vets who have a background farming after two students working on his farm were left upset because one of his workers raised his voice to the pigs and made a complaint to the Department of Agriculture in relation to how he conducts his farming.

I don’t propose to discuss the term ‘snowflake generation’ in this article but it did prompt me to discuss the procedures for dismissing an employee if you find yourself in such a situation. There are instances when you hire an employee in your farming business and unfortunately it doesn’t work out and you need to consider letting them go.

Unfair dismissal is governed in Ireland by the Unfair Dismissals Acts 1977-2001, and two fundamental principles should be noted.

    1. An employer must have substantial grounds for dismissing an employee;
    2. In doing so, the employer must apply fair procedures to the process.

The Unfair Dismissals Acts cover people who have been in employment for at least 52 weeks continuous service and have not yet reached the normal retirement age for the employment in question.

Certain reasons for dismissal are considered to be automatically unfair. These include:

    • membership or proposed membership of a trade union or engaging in trade union activities
    • legal proceedings against an employer where an employee is a party or a witness
    • race, colour, sexual orientation, age or membership of the Traveller community
    • pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
    • availing of rights under legislation such as maternity leave, adoptive leave, carer's leave, parental or force majeure leave
    • unfair selection for redundancy

To dismiss fairly, you need a combination of one of the five potentially fair statutory reasons plus a procedure that is fair and reasonable.

The five potentially fair reasons to dismiss an employee are:

    1. Conduct or Behaviour
    2. Capability
    3. Redundancy
    4. Breach of Statutory Restriction or;
    5. Some other substantial reason

Normally before a dismissal, the employer should arrange a disciplinary hearing. At the hearing, the employee should be given the opportunity to relay their side of the story to the other side and to challenge the evidence. Employees should also be allowed to be accompanied by a colleague or a trade union representative, who can ask questions and represent them.

Employees cannot be sacked for a first offence unless their behaviour is so serious and it amounts to gross misconduct.

If the issue relates to an employee’s performance, they should be warned and given time to improve before being dismissed. They must be given informal and formal warnings. They must be given an opportunity to appeal against the dismissal too, and most employers will allow staff to appeal against written and final warnings.

It is also important that every farming business has a disciplinary policy. The question as to whether or not you had a dismissal procedure in place will be taken into account when deciding if a dismissal was unfair. It is very important that as an employer you seek legal advice before dismissing an employee.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, Dublin and Cork, and author of ‘Farming and the Law’.    
Email: info@walshandpartners.ie 
Web: www.walshandpartners.ie 

Disclaimer: While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.

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