asked the Minister for Labour if it is possible for employees who have less than approximately one year's continuous employment with an employer to take action under the Unfair Dismissals Act, 1977; and if he is satisfied with the provisions that exist in this regard.
Ceisteanna—Questions. Oral Answers. - Unfair Dismissal Legislation.
5.
Section 2 (1) of the Unfair Dismissals Act excludes from the scope of the Act employees with less than one year's continuous employment with the same employer. However this exclusion does not apply to: (i) an employee dismissed because of pregnancy; (ii) an employee dismissed because of membership or proposed membership of a trade union and (iii) a person engaged under a statutory apprenticeship who has completed six months of the apprenticeship or has completed one month of employment after the end of the apprenticeship.
The qualifying period of one year's service which is ordinarily required under the Act gives an employer reasonable time in which to assess an employee's competence, capability and qualifications for the job.
Employees who feel that they have been unfairly dismissed but who are unable to avail of the Unfair Dismissals Act because of insufficient service have access to the services of either a Rights Commissioner or the Labour Court under the Industrial Relations Act, 1969, or may take an action in the courts to recover damages at common law.
I have had no representations on behalf of employers or employees in regard to the qualifying period, but the matter can be looked at when the legislation is being reviewed.
Does the Minister consider that the idea of having a 12 month qualifying period could lead to abuse, particularly in view of the fact that the kind of criteria which he refers to as being those by which an employer would be able to assess an employee over the 12 month period are those which are already covered by the contract which the employee would have anyway? If the employee is incompetent or unable to do the job there is no particular reason why notice should not be served. What is the rationale behind the 12 month period?
The Minister responsible for bringing in legislation where time limits are being imposed has to take a number of factors into consideration. As is appropriate for a Minister for Labour my predecessor, in determining this, had discussions with both sides of industry and, having had those discussions, he regarded that time as being a reasonable period. Having decided on the 12 month period—and one can always argue whether any length of time is too short or too long—I have had no representations on behalf of employers or employees in regard to the qualifying period. Therefore I would accept that the 12 month period appears to be a reasonable qualifying period.
Allowing for the fact that the volume of representations does not necessarily relate to what is right or wrong, would the Minister consider that that sort of clause involves the possibility of anomalies or injustices where, for example, one employee on the shop floor has been there for just under 12 months alongside a colleague who is there for 13 months and one is treated by one set of criteria and the other by another set of criteria?
Any period one establishes, whether it is three months, six months or 12 months will always give rise to difficulties with those who are just short of the period or just beyond the period. On the other hand it is true to say that while I accept that representations for or against a particular period do not necessarily mean that it is right or wrong, they give an indication that in practice the qualifying period, to date at least, is found to be a reasonable qualifying period.