Employment Law: Addressing Issues and Dismissal Procedures in Compliance with Irish Employment Laws

Running head: EMPLOYMENT LAW
Employment Law
Name of the Student
Name of the University
Author Note

1EMPLOYMENT LAW
Memorandum
To
Tom Browne,
The following issues relating to the employment law has been noticed in the company that
needs to be addressed with respect to the employment laws prevalent in Ireland. The laws that
needs attention and the possible actions that is required to be adopted in this section of the
will be enumerated in the following sections.
1. The first issue in this situation is whether Tom is justified in effecting the dismissal
of Gerard Smith for being negligent in performing his employment duties and
whether any remedy is available to Gerard Smith in this regard. A dismissal that
has not been effected in pursuance of the employment laws will be rendered to be
an unfair dismissal. According to the employment laws prevailing in Ireland, an
employee is not protected against unfair dismissal. However, he may claim
damages against the employer for being unfairly dismissed. This right to claim
damages can be availed by the employee after the dismissal has been effected and
not before it. However, this remedy is available only if the dismissal is unfair. In
case the dismissal is fair, the employee does not incur a right to seek damages or
challenge the dismissal. However, in case the employer has committed a gross
misconduct and after being furnished an adequate amount of warnings did not
refrain from performing the misconduct, the employer is justified in effecting a
summary dismissal against him. This can be illustrated with the case of British
Home Stores v Burchell[1978] IRLR 379. Moreover the employee has a duty to
ensure his actions to be safe and healthy to his own and other employees’ interests
under the section 13 of the Safety, Health and Welfare at Work Act 2005.
However, in case the employee is negligent in ensuring the safety in the workplace,
the same can be regarded as a negligent conduct in performing his duties as an
employee. The employer is justified in effecting a summary dismissal. Again, to
effect the summary dismissal, the employee must be given a fair warning of such
conduct. A proper notice needs to be served upon the employee in this regard. The
employee must be given a fair chance of presenting his side. In case the employer
is determined that there is a presence of gross misconduct, which has been
committed by the repetitive negligent behaviour, he may suspend the employee
and investigate the situation. when the employer has made all the investigations in
this regard and has arrived at the decision that the dismissal is necessary, he may
summarily dismiss the employee. In the case of Gerard Smith, his job requires him
to use a forklift. The use of forklift requires a considerable amount of care and
while using it the flashing amber light needs to be switched on. This has the
likelihood of inviting hazards and a possibility of causing accidents. The conduct
of Gerard Smith in this situation has been violative of the provision contained in
section 13 of the Safety, Health and Welfare at Work Act 2005, as he has failed to
ensure the safety of other employees. Moreover, he has been furnished with a
verbal warning regarding the same and has been negligent in considering the same.
This warning was also included in the file of the employee. In such a case Tom is
justified in considering the dismissal of Gerard Smith, but the dismissal needs to be
effected following a procedure. Firstly, Gerard needs to be provided with a formal
written notice about such a dismissal mentioning the reason for the same.

2EMPLOYMENT LAW
Secondly, he needs to be given a fair chance of explaining his side. In case the
explanation is not good enough, the employer is justified in suspending Gerard
with immediate effect and afterwards effect the dismissal.
2. The second issue in this situation is whether Tom can dismiss Brendan on the spot
as it is a legal requirement for Brendan to hold a valid Driver CPC and that he
should have brought this to Tom’s attention. The employee is not justified in
dismissing the employee in case he cannot furnish a proper reason to support such
a dismissal. A dismissal without a valid reason will be considered to be an unfair
dismissal. In case an employee is not competent to perform a job he has been hired
for, the employer is justified in dismissing the employee in the ground of
incompetence. However, in case, the area of the job of the employee has been
changed in the company and the employer is required to carry out some other
work, his incompetence in performing the same needs to be given a change of
improvement. However, in such a case if the employee fails to inform the
employer about any incapacity or lack of authority that he might have in
performing the job he was subsequently assigned, the employer may consider
dismissal of the employee on the grounds of incompetence. The same can be
illustrated with the case of Richards v. H Williams and Co Ltd 1979. To effect a
dismissal under this ground, the employer is required to serve a notice upon the
employee to that effect and provide the employee with a fair chance of being
heard. In case the explanation provided by the employee is not adequate, a
dismissal can be effected terminating his employment. Again, under the Terms Of
Employment (Information) Act 1994, an employer is supposed to provide the
employee with a written statement containing the terms of employment within two
months of the commencement of the employment. In the present case, Brendan
Lynch was initially employed as a general operative but has been transferred to the
in the logistics department as a driver, after he got his HGV license. However, later
on it was discovered that he does not have a recent Driver CPC (Certificate of
Professional Competence), which he was required to have in order drive a truck.
Owing to this, Tom has considered dismissing Brendan for the fact that holding a
driver CPC is a legal requirement. Tom also contended that Brendan should have
informed him about this. It can be contended that Tom will not be justified in
terminating Brendan from employment as Tom also has the duty to ask Brendan
for such certificate before assigning him as a driver. Moreover, Tom has assigned
him as a driver basing upon his HGV license, and did not enquired about the driver
CPC during making the changes in his employment. Again, Brendan was initially
employed to carry on another work, and later on transferred to driving. Hence, the
proposed dismissal will amount to unfair dismissal. Moreover, the employer has
not provided any written statement relating to the employment to the employee.
Hence, the employer needs to provide the written statement first. After that, he is
required to give a fair warning to the employee and make him take the training to
avail driver CPC.
3. The third issue in this situation is whether Stephanie Dunne is justified in being
absent on sick leave for three weeks and has sent in a medical certificate citing
stress as the reason for her absence. In the case of Cross v. Highlands and Islands
Enterprise, 2001, IRLR 336, it was held that the employer is required to deal with
stress seriously. The employer should investigate the cause of stress in relation to
employees. The employer needs to address all the complaints relating to
harassment and bullying that has been made and make investigations and take
actions regarding the genuine ones. Sexual Harassment implies any conduct, which