Employment Law

Illegal Alien

Hi folks,

I have a question regarding employment law and dismissal if anybody would like to enlighten me.

I'm not looking for advice here on any grounds for any legal reasons, merley a conversation I had with a friend and am looking for clarity on opinions.

Is it "legal" to dismiss someone on a permanent contract of employment for sick leave, regardless of the duration (or if so, then of a duration of no more than a month) and regardless of ilness as long as it is certified by a doctor?

And also, in your opinon, would a person have grounds for unfair dismissal, or even constructive dismissal, if disciplinary action was taken against somebody in the work place for certified sick leave?

Thanks for opinions. Again, can't stress enough, this is not legal advice, simply looking for a more enlightend opinion on a topic of conversation with a friend.

Thanks.

Steve

I don't believe there is any concept of 'sick leave' defined in Irish legislation.

An employer certainly is not obliged in any way to compensate for it.

Is it "legal" to dismiss someone on a permanent contract of employment for sick leave, regardless of the duration (or if so, then of a duration of no more than a month) and regardless of ilness as long as it is certified by a doctor?

I believe a solicitor would investigate whether proper disciplinary procedures were followed and also look at what conditions, if any, were in the contract of employment. Previous company policy would also play a part.

And also, in your opinon, would a person have grounds for unfair dismissal, or even constructive dismissal, if disciplinary action was taken against somebody in the work place for certified sick leave?

Constructive dismissal is where an employee is bullied into resigning, so in my opinion, no, not if published company procedure was followed.
Unfair dismissal is covered in legislation and I don't know enough about it - at that point proper legal advice should be sought.

*all the above is opinion, I'm not a legal expert and I'm sure someone more enlightened than me will post and contradicit some or all of what I posted.

Rhonda9000

With regard to sickness, capacity to perform is key. It is legal under the Unfair Dismissals Act 1977 to dismiss an employee where their ill health renders them incapable of performing their duties.

Generally speaking, the test for an unfair dismissal -under the UDA 1977- is having regard for all the circumstances, that there were substantial grounds (e.g. capability, conduct, redundancy) justifying the dismissal. The onus of proof to prove these substantial grounds is on the employer.

I always thought (and I am open to correction) that disciplinary procedures were intended to address an employees behaviour / conduct in the workplace. I therefore find the idea that somebody would be disciplined for something outside of their control like being ill i.e. "how dare you be sick" odd.

Rhonda9000

SteveC wrote: »

I don't believe there is any concept of 'sick leave' defined in Irish legislation.

An employer certainly is not obliged in any way to compensate for it.

Just in relation to compensation during times of incapacity to work.. state welfare insurance schemes such as disability benefit, injury benefit etc. are defined in social welfare law.

pirelli

Illegal Alien wrote: »

Hi folks,

I have a question regarding employment law and dismissal if anybody would like to enlighten me.

I'm not looking for advice here on any grounds for any legal reasons, merley a conversation I had with a friend and am looking for clarity on opinions.

Is it "legal" to dismiss someone on a permanent contract of employment for sick leave, regardless of the duration (or if so, then of a duration of no more than a month) and regardless of ilness as long as it is certified by a doctor?

And also, in your opinon, would a person have grounds for unfair dismissal, or even constructive dismissal, if disciplinary action was taken against somebody in the work place for certified sick leave?

Thanks for opinions. Again, can't stress enough, this is not legal advice, simply looking for a more enlightend opinion on a topic of conversation with a friend.

Thanks.

Disciplinary action: This could be about whether the employee followed company policy during sick leave and whether he informed the company of his absence within the prescribed time. It might be something as simple as your absence letter or call went missing. You need to be more clear on what precisely the disciplinary action was about, and were there previous warnings about absenteeism.

There have been cases before the courts where an employee was absent for over two years and it was determined her dismissal was unfair, and it was unfair.

There was case of a man that had previous warning about absenteeism, and was dismissed when he was absent again; partly because he didn't inform his employer he would be absent and partly for other reasons. His dismissal was found to be fair. I and many other would find that slightly unfair. I felt his mistake was accepting a serious set of warnings about his absenteeism.

He should have mitigated these warnings. Like Rhondabot9000 said how can you discipline someone for being sick when they have a medical cert. I think that in his case he was unsure of where he stood and was afraid of getting any more absences and made a small judgment of error.

It's a very compelling question and I would love to know how an employer can discipline a genuine absentee person. MY advice would be to be very careful not to receive any warnings about absenteeism and mitigate and appeal any warning particuarly if you are prone to getting sick, and try to make your case to your employer.

There was one woman who was absent for three years, it was only when she refused ( ?) the long term disability plan the company offered her ( 50 % of regular pay and social welfare) and there was no forseeable future due to her returning that they dismissed her.

pirelli

Rhonda9000 wrote: »

With regard to sickness, capacity to perform is key. It is legal under the Unfair Dismissals Act 1977 to dismiss an employee where their ill health renders them incapable of performing their duties.
.

It is legal to sack an employee under common law. Under employment legislation, however the company would be found to have unfairly dismissed an employee due to capacity if that company did not make an effort to try and find alternative work arrangements.

A factor would be no forseeable end to someones illness, In any event they can't just say your fired. They have to discuss the dismissal process with the employee prior to making that decision. Employer and employee have to know where they stand. There is usually expected to be a medical check on the employee to see if suitable work can be allocated and alternative work patterns adopted to try facilitate the employee. Unless this can be proven or shown to have been done then the dissmissal might be found to be unfair.

Illegal Alien

Illegal Alien wrote: »

Hi folks,
Again, can't stress enough, this is not legal advice, simply looking for a more enlightend opinion on a topic of conversation with a friend.

The first question is whether the employee can establish one year's continuous employment. If that cannot be established, then the Unfair Dismissal legislation does not apply. If it can, then not only does it apply but, unless you are leaving out some very important aspects (were there warning letters, was the employee requested to attend a meeting or set out the prognosis in a report) it would seem to be a very solid case to bring to the EAT.

pirelli

Deleted User wrote: »

The first question is whether the employee can establish one year's continuous employment. If that cannot be established, then the Unfair Dismissal legislation does not apply. If it can, then not only does it apply but, unless you are leaving out some very important aspects (were there warning letters, was the
employee requested to attend a meeting or set out the prognosis in a report) it would seem to be a very solid case to bring to the EAT.

Not neccesarily, It could be a very weak case, The absentee could have flagrantly and deliberately caused a dissmissal offence by not following the company policy on reporting that he/she is sick . The employee may have abandoned his/her job, simply by not appearing for work over several days which would be an automatic dissmissal. A medical cert does not negate the duties expected of an employee. A solid case might quickly turn into a fair dissmissal.


The one year continuous employment is invalid in certain case's such maternity etc..and you can bring an unfair dissmissal claim despite not working one year in certain conditions. In any event you can always bring a case under the labour relations, at any stage in employment for any reason including your dismissal.

pirelli

Illegal Alien wrote: »

Hi folks,

I have a question regarding employment law and dismissal if anybody would like to enlighten me.

I'm not looking for advice here on any grounds for any legal reasons, merley a conversation I had with a friend and am looking for clarity on opinions.

Is it "legal" to dismiss someone on a permanent contract of employment for sick leave, regardless of the duration (or if so, then of a duration of no more than a month) and regardless of ilness as long as it is certified by a doctor?

And also, in your opinon, would a person have grounds for unfair dismissal, or even constructive dismissal, if disciplinary action was taken against somebody in the work place for certified sick leave?

Thanks for opinions. Again, can't stress enough, this is not legal advice, simply looking for a more enlightend opinion on a topic of conversation with a friend.

Thanks.

http://www.boards.ie/vbulletin/showthread.php?t=2055331340

Why can't you give more fact's illegal alien.


Some industries such as transport, will suffer a serious business impact due to an absence, therefore proper procedures are important. If a pilot for ryanair doesn't show up for work, it's going to be hard to suddenly replace him and a PR disaster could result and also be very costly to both shot term and long term business.

You have to try get a message to your employer in advance, in saying that however; your employer should have the proper facilities so that you an contact them to say that you are sick and wont be in. If they don't have those facilties then I believe that they are being unfair and the sick person should not face any sanction.

pirelli

pirelli wrote: »

Not neccesarily, It could be a very weak case

That's why I said it was a good case 'unless the OP was leaving out some important aspect'.

Of course, if the employee had, say stolen money and headbutted the boss, the case might weaken.

Maximilian

OK, Illegal Alien, whereas you said you were not looking for legal advice, it's clear you in fact were.

Go see a solicitor if you are considering making some claim.

Thread locked.