Unfair Dismissals Act , 1977

1. Definitions.

1.—In this Act—

F1["Act of 2015" means the Workplace Relations Act 2015;

"adjudication officer" has the same meaning as it has in the Act of 2015;]

F2["adopting parent" means an employee who is an adopting parent within the meaning of theAdoptive Leave Act 1995;]

“contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;

“date of dismissal” means—

(a)where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b)where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i)the earliest date that would be in compliance with the provisions of the contract of employment,

(ii)the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

(c)where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract 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), there is a cesser of the purpose, the date of the expiry or cesser;

F1["Director General" means the Director General of the Workplace Relations Commission;]

“dismissal”, in relation to an employee, means—

(a)the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c)the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract 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), the cesser of the purpose;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the F3[Local Government Act 2001(as amended by the Local Government Reform Act 2014)], shall be deemed to be employed by the local authority;

“industrial action” means lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment;

F4["Minister" means the Minister for Enterprise, Trade and Employment;]

F5["protected disclosure" has the meaning given by the Protected Disclosures Act 2014;]

“redundancy” means any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971;

F5["relevant wrongdoing" has the meaning given by the Protected Disclosures Act 2014;]

“statutory apprenticeship” means an apprenticeship in a designated industrial activity within the meaning of the Industrial Training Act, 1967, and includes any apprenticeship in a trade to which an order, rule or notice referred to in paragraph (a) or (b) of section 49 (1) of that Act applies;

“strike” means the cessation of work by any number or body of employees acting in combination or a concerted refusal or a refusal under a common understanding of any number of employees to continue to work for an employer, in consequence of a dispute, done as a means of compelling their employer or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment;

F6["trade union" means a trade union which is the holder of a negotiation licence under Part II of theTrade Union Act, 1941;]

F6["the Tribunal" means the Tribunal established bysection 39of theRedundancy Payments Act, 1967, and known, by virtue of section 18 of this Act, as the Employment Appeals Tribunal.]

F7[(2)Where on the date of an award to an employee of re-instatement under this Act—

(a)the terms or conditions on which are employed other employees of the same employer who occupy positions similar to that from which the employee was dismissed, or

(b)if there are no such employees, the terms or conditions on which are employed employees generally of the same employer,

are more favourable to the employees concerned than they were at the date of the dismissal, then, the references insections 5(4) and7(1) (a) of this Act to the terms and conditions on which an employee was employed immediately before his dismissal shall, in the case of the first-mentioned employee, be construed as references to terms and conditions corresponding to those on which the other employees concerned are employed on the date of the award.

(3)In this Act a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act.]

2. Exclusions.

2.—(1)F8[Except in so far as any provision of this Act otherwise provides] this Act shall not apply in relation to any of the following persons:

(a)an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him F9[…],

(b)an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment F10[or who on that date had not attained the age of 16 years],

(c)a person who is employed by his spouse F11[, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother or half-sister, is a member of his employer’s household and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside,

(d)a person in employment as a member of the Defence Forces, the Judge Advocate-General, the chairman of the Army Pensions Board or the ordinary member thereof who is not an officer of the Medical Corps of the Defence Forces,

(e)a member of the Garda Síochána,

(f)a person (other than a person employed under a contract of employment) who is receiving a training allowance from or undergoing instruction by An Chomhairle Oiliúna or is receiving a training allowance from and undergoing instruction by that body,

(g)a person who is employed by An Chomhairle Oiliúna under a contract of apprenticeship,

F12[(h) subject to the provisions of this subsection a person who was employed by or under the State who was dismissed by the Government,]

F13[(i) a chief executive of a local authority for the purposes of section 144 of theLocal Government Act 2001(as amended by the Local Government Reform Act 2014),]

(j) F14[…]

F15[F16[(k) the chief executive officer of the Health Service Executive appointed under section 21A of theHealth Act 2004,]

(l) the chief executive officer of the Child and Family Agency appointed undersection 28of the Child and Family Agency Act 2013.]

(2)F17[Subject to subsection (2A), this Act] shall not apply in relation to—

(a)dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its 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 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, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

F18[…]

F19[, or

F20[(c) dismissal where the employee’s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994, or is absent from work attending ante-natal classes in accordance with section 15A (inserted bysection 8of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section 15B (inserted bysection 9of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act, and the dismissal of the first-mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee.]]

F21[(d) dismissal where—

(i) the employee’s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of an adopting parent who is absent from work in accordance with the Adoptive Leave Acts 1995 and 2005 during a period of adoptive leave or additional adoptive leave or a period of time off from work while attending certain pre-adoption classes or meetings, and

(ii) the dismissal of the employee duly occurs for thepurpose of facilitating the return to work of the adopting parentF22[, or

(e) dismissal where the employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of an employee who is absent from work while on carer’s leave under the Carer’s Leave Act, 2001, and the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the employee who has been on carer’s leave.]]

F23[(2A) Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) ("the prior contract") without the term being renewed under the contract or the cesser of the purpose of the contract—

(a) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee ("the subsequent contract") and the nature of the employment is the same as or similar to that of the employment under the prior contract,

(b) the employee is dismissed from the employment,

(c) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

(d) in the opinion ofF24[the adjudication officer or the Labour Court], as the case may be, the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act,

then—

(i) this Act shall, subject to its other provisions, apply to the dismissal, and

(ii) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

(2B) In subsection (2A), "antecedent contract", in relation to a prior contract, means—

(a) a contract of employment of the kind mentioned in subsection (2) the term of which expired not more than 3 months before the commencement of the prior contract, or

(b) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series,

being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same as or similar to that of the employment under the prior contract.]

(3)(a)This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless—

(i)he was ordinarily resident in the State during the term of the contract, or

(ii)he was domiciled in the State during the term of the contract, and the employer—

(I)in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or

(II)in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract.

(b)In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.

(4)The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as amended by section 20 of this Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous.

F25[(5)Notwithstanding subsection (4) of this section, the dismissal (not being a dismissal referred to in theF26[subsection (2A)]of an employee followed by his re-employment by the same employer not later than 26 weeks after the dismissal shall not operate to break the continuity of service of the employee with the employer if the dismissal was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act.]

2A. F27[Application of Act to certain civil servants.

2A.—(1) For the purposes of this Act, as respects the dismissal of a person who prior to such dismissal was a civil servant a reference in this Act to an "employee" shall be construed as including a civil servant who held office in the Civil Service of the Government or in the Civil Service of the State.

(2) Subject to subsection (4), for the purposes of this Act, as respects the dismissal of a person who prior to such dismissal was a civil servant a reference in this Act to an "employer" shall be construed as including the State, a Minister of the Government, a Department or a Scheduled Office (which term has the same meaning as it has inthe Civil Service Regulation Act 1956) in which the civil servant concerned held office prior to the dismissal.

(3) As respects a civil servant to whom this Act applies, for the purposes of this Act, "contract of employment" means such arrangements as are made by the Minister for Finance undersection 17 of the Civil Service Regulation Act 1956, together with such further terms and conditions of service which apply to the civil servant concerned, made in respect of a particular Department or Scheduled Office which extend or alter the arrangements under the said section 17.

(4) For the purposes of this section and the First Schedule—

(a) "Department" includes such bodies or organisations (whether established by or under statute, or otherwise) other than a Scheduled Office,for which the Minister having charge of the Department concerned is responsible, and

(b) "Scheduled Office" includes such bodies or organisations (whether established by or under statute or otherwise) for which the Minister of the Government having charge of the Scheduled Office is responsible.

(5) Where, as respects a person who was dismissed as a civil servant, the dismissal is found to be an unfair dismissal, andF28[the adjudication officer or the Labour Court], as the case may be, considers, pursuant to section 7, that it is appropriate that such person be re-engaged or re-instated, the right of re-instatement or re-engagement shall be construed to be a right to be re-instated or re-engaged, as the case may be, in the grade or rank held by that civil servant prior to his dismissal.

(6) Nothing in this section shall be construed as affecting the status of a civil servant as an officer.]

3. Dismissal during probation or training.

3.—(1) F29[Except in so far as any provision of this Act otherwise provides] This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

(a)if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or

(b)if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.

(2)This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is undergoing training for the purpose of becoming qualified or registered, as the case may be, as a nurse, pharmacist, health inspector, medical laboratory technician, occupational therapist, physiotherapist, speech therapist, radiographer or social worker.

4. Dismissal during apprenticeship.