UNFAIR DISMISSALS ACT 1977

Redress for unfair dismissal.

7

7. (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F47 [ the adjudication officer or the Labour Court ], as the case may be, considers appropriate having regard to all the circumstances:

( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

F48 [ ( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. ]

F49 [ (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. ]

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

( a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

( b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

( c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, F50 [ ]

F48 [ ( d ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

( e ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

( f ) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. ]

F51 [ (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee

( a ) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

( b ) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded. ]

F52 [ (2B) Where

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be. ]

(3) In this section—

financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Annotations:

Amendments:

F47

Substituted (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 80(1)(f), S.I. No. 410 of 2015, subject to transitional provisions in subss. (1A) and (2).

F48

Substituted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 6(a) and (b), commenced as per s. 17(4).

F49

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 11(1)(d), S.I. No. 327 of 2014.

F50

Deleted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 6(b), commenced as per s. 17(4).

F51

Inserted (1.10.1993) by Unfair Dismissals (Amendment) Act 1993 (22/1993), s. 6(c), commenced as per s. 17(4).

F52

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 11(1)(e), S.I. No. 327 of 2014.

Modifications (not altering text):

C22

Subss. (1)(c) and (2) substituted in certain circumstances (for period 8.05.2007 to 8.05.2013) by Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), ss. 3, 9(3), commenced on enactment and extended by S.I. No. 197 of 2010.

Effect of opinion.

9.— ...

(3) Section 7 of the Unfair Dismissals Act 1977 has effect in relation to a dismissal that is one of a number of dismissals included in a collective redundancy that is determined by the Labour Court, in an opinion given under section 8, to be an exceptional collective redundancy as if—

(a) the following paragraph were substituted for paragraph (c) of subsection (1) of section 7:

“(c) payment by the employer to the employee of such compensation as is just and equitable having regard to all the circumstances but does not exceed in amount remuneration in respect of the employment from which the employee was dismissed (calculated in accordance with regulations under section 17 of this Act) for—

(i) in the case of an employee who, at the date of the dismissal, had not more than 20 years’ continuous service — 208 weeks, or

(ii) in the case of an employee who, at the date of the dismissal, had more than 20 years’ continuous service —260 weeks.”,

and

(b) the following subsection were substituted for subsection (2) of section 7:

“(2) Without prejudice to the generality of subsection (1), in determining any reduction in the amount of compensation otherwise payable under paragraph (c) of that subsection regard shall be had only to the amount (if any) of severance or redundancy payment accepted by the employee in relation to the dismissal.”.

Editorial Notes:

E16

Previous affecting provision: application of section potentially restricted (1.07.1977) by Employment Equality Act 1977 (16/1977), s. 27(3), S.I. No. 176 of 1977; repealed (18.10.1999) by Employment Equality Act 1998 (21/1998), s. 5(1), S.I. No. 230 of 1999, subject to continued operation of certain orders.