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PERSONAL GRIEVANCES AND DISPUTES

 

Employment relationship problems

This includes personal grievance claims and other employment related litigation, including issues arising during employment, misconduct issues, performance management, health and safety and stress claims.

Personal grievance

The Employment Relations Act 2000 (“the Act”) gives all employees the right to pursue a personal grievance if they have any of the following complaints:

• unjustifiable dismissal
• unjustifiable action which disadvantages the employee;
• discrimination
• sexual harassment
• racial harassment
• duress over membership of a union or other employee organisation

An employee must raise a personal grievance within 90 days of when the grievance occurred or came to the employee’s attention.

Employers are able to employ new employees on a 90 day trial period and may dismiss them during this time without providing a written statement or reasons for the dismissal. An employee cannot pursue a personal grievance for unjustified dismissal during a trial period, but can, during this period, pursue a personal grievance for discrimination or harassment.

If the parties cannot resolve the matter at the workplace level, both the employee and the employer should seek advice on how to deal with the specifics of the case. Mactodd provides advice for both employers and employees, and is happy to assist with any potential employment relationship problems.

If a problem can’t be resolved, parties can go to mediation and/or the Employment Relations Authority or Employment Court for determination.

The test of justification which assesses the fairness of an employer’s decision in relation to disciplinary action is whether the employer's actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

For instance, before dismissing or taking action against the employee, did the employer:

• having regard to the resources available, sufficiently investigate the allegations against the employee;
• raise his or her concerns with the employee;
• give the employee a reasonable opportunity to respond to those concerns;
• genuinely consider the employee’s explanation in relation to the allegations?
• The following remedies are available under the Act in order to settle the grievance:
• reinstatement of the employee in the employee’s former position;
• reimbursement of the wages or any other money lost;
• compensation by way of a monetary payment.

Other employment relationship problems

We can also assist employers and employees where there have been issues of misconduct, performance issues, and issues surrounding dismissal for incapacity and dismissal for incompatibility. These are areas where advice should be taken by both sides and we are more than happy to assist to achieve practical solutions.

Redundancy and Restructuring

Employers often need to make changes in the workplace for a variety of reasons. However, in doing so care must be taken to ensure employment relationship problems aren’t created.

Restructuring a business may result in redundancies if positions are no longer required. In making a position redundant, an employer must comply with the terms of the employee’s employment agreement. The employer’s obligations in this regard may derive from an individual agreement, a collective agreement, or a combination of the two.

Not only must there be a genuine work-related reason for a redundancy but the dismissal must be carried out in a way that is procedurally fair. An employer has a duty to act in good faith throughout this process. This includes providing employees with adequate information when they are considering changes that will affect their jobs and ensuring employees have the opportunity to contribute to any decisions.

When a decision to proceed with redundancy is made, notice must be given to the employee, as well as any other contractual entitlements such as redundancy compensation and annual leave.

Employees can raise a personal grievance if they believe their employer has acted unjustifiably, for example where the employee doesn’t believe the redundancy was for genuine work-related reasons, the provisions of the employee’s employment agreement has not been adhered to, or the process in carrying out the redundancy was not reasonable and fair.

If you are an employer who wants advice on any of the above, or an employee who feels aggrieved by your employer’s actions, please contact the Mactodd employment law team. We are happy to assist in dealing with these challenges in a cost-effective and timely way.

 

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