Dáil Éireann Debate, Tuesday - 27 April 2010
121 Deputy John Deasy asked the Minister for Enterprise, Trade and Employment if employers are legally entitled to lay off employees due to lack of work while employing subcontractors to carry out similar work; and if he will make a statement on the matter. [16799/10]
Amharc ar fhreagraIt is difficult to answer the Deputy's question except in the most general terms to say that there are safeguards built into various pieces of legislation to guard against abuse of the employer-employee relationship, particularly when dealing with matters relating to the termination of that relationship e.g. unfair dismissal. Ultimately, each case will hinge on its facts, as interpreted and ruled upon by various elements of the State's dispute resolution machinery e.g. Rights Commissioners and/or Employment Appeals Tribunal and, if necessary, the Law Courts. The following information relating to the type of issues that can arise in such cases may be of some assistance.
Lay off
A lay-off situation exists when an employer suspends an employee's employment because there is no work available, when the employer expects the cessation of work to be temporary and when the employer notifies the employee to this effect. For a lay-off situation to apply the period of lay-off must be genuinely of a temporary nature.
Redundancy
In general, redundancy is a situation where an employee's job has been made redundant and the employee is not replaced. A key issue in respect of selection for redundancy is that the selection process must be seen to be fair and non discriminatory. Should an individual feel that they have been unfairly dismissed by reason of unfair selection for redundancy, it is open to that individual to take a case to the Rights Commissioners or to the Employment Appeals Tribunal under the Unfair Dismissals Acts.
Collective Redundancy
The issue of collective redundancies is governed by the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007. Collective Redundancy is the making redundant within a period of 30 consecutive days, of a minimum number of employees. That minimum varies with the size of the workforce. The relevant minimum number of proposed redundancies, vis-à-vis the size of the overall workforce, is as follows:
5 employees in an establishment employing 21-49 employees;
10 employees in an establishment normally employing 50-99 employees;
10% of employees in an establishment normally employing 100-299 employees or;
30 employees in an establishment normally employing 300 or more employees.
There must be a minimum of 20 employees before there can be a collective redundancy situation. The number of employees normally employed in an establishment is taken to be the average of the number so employed in each of the 12 months preceding the date on which the first dismissal takes place. Where companies are being closed down following bankruptcy, winding-up proceedings or an unsuccessful examiner ship there will not be a collective redundancy situation.
Companies proposing collective redundancies must provide certain information to employee representatives regarding the proposed collective redundancy. They must enter into consultation with the employee representatives at least 30 days before anyone receives notice of redundancy. Companies must also notify the Minister for Enterprise, Trade and Employment of the proposed redundancies at least 30 days before any employee receives notice of redundancy. The consultation with the employee representatives and the notification period for the Minister can run concurrently.
Exceptional Collective Redundancy
Exceptional Collective Redundancy is defined under Section 16 of the Act. Essentially, to be considered an exceptional collective redundancy situation under the Act, the proposal must involve a compulsory collective redundancy proposal with the planned replacement of staff by:
Direct employees employed by the employer;
The use of other replacement workers by the aforementioned employer in the same location or elsewhere in the jurisdiction;
On materially inferior Terms and Conditions, and with the new workers performing essentially the same functions as those to be made redundant.
The Unfair Dismissals Acts, 1977 to 2007 generally apply to any employee who has 12 months continuous service with the employer. In the case of a complaint referred to a Rights Commissioner, the employer may object and in that event the matter will be heard by the Employment Appeals Tribunal.
Unfair Dismissal
The Unfair Dismissals Acts provide that the dismissal of an employee shall be deemed, for the purposes of the Acts, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
the capability, competence or qualifications of the employee for performing work of the kind which he/she was employed to do;
the conduct of the employee (in which case the issue of disciplinary procedures may be important);
the redundancy of the employee's job.
In determining for the purposes of the Acts whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified above or that there were other substantial grounds justifying the dismissal.
If the employees have any further queries, they may contact the National EmploymentRights Authority (NERA) on its Lo-call number 1890 80 80 90 or via its website at www.employmentrights.ie
