UFD Remedies
Unfair Dismissals Act
Redress for unfair dismissal.
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.
Repayment of moneys paid under Redundancy Payments Acts
19.—Where an employee is re-instated or re-engaged by an employer in pursuance of a determination or order under this Act in relation to the dismissal of the employee by the employer, any payments made under the Redundancy Payments Acts, 1967 and 1973, in relation to the dismissal shall be repaid by the person to whom they were made to the person by whom they were made and may be recovered by the latter from the former as a simple contract debt in any court of competent jurisdiction and any moneys due and owing to any person under those Acts in relation to the dismissal shall cease to be due or owing.
The text in italics on this page is sourced from lawreform.ie and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
S.I. No. 287/1977 –
Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977.
UNFAIR DISMISSALS (CALCULATION OF WEEKLY REMUNERATION) REGULATIONS, 1977.
I, GENE FITZGERALD, Minister for Labour, in exercise of the powers conferred on me by section 17 of the Unfair Dismissals Act, 1977 (No. 10 of 1977), hereby make the following Regulations:
1. (1) These Regulations may be cited as the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977.
(2) These Regulations shall come into operation on the 14th day of September, 1977.
2. In these Regulations—
“the Act” means the Unfair Dismissals Act, 1977 (No. 10 of 1977);
“date of dismissal” has the meaning assigned to it by section 1 of the Act, and “date”, in relation to a dismissal, shall be construed accordingly;
“relevant employment”, in relation to an employee, means the employment in respect of which the weekly remuneration of the employee is calculated for the purposes of section 7 (1) (c) of the Act;
“week”, in relation to an employee whose remuneration is calculated by reference to a week ending on a day other than a Saturday, means a week ending on that other day and, in relation to any other employee, means a week ending on a Saturday, and “weekly” shall be construed accordingly.
3. ( a ) A week’s remuneration of an employee in respect of an employment shall be calculated for the purposes of section 7 (1) (c) of the Act in accordance with these Regulations.
( b ) Where, at the date of his dismissal from an employment, an employee had less than 52 weeks’ continuous service in the employment, a week’s remuneration of the employee in respect of the employment shall be calculated, for the purposes of the said section 7 (1) (c), in the manner that in the opinion of the Tribunal corresponds most closely with that specified in these Regulations.
4. In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.
5. For the purpose of Regulation 4 of these Regulations, the average weekly overtime earnings of an employee in the relevant employment shall be the amount obtained by dividing by 26 the total amount of his overtime earnings in that employment in the period of 26 weeks ending 13 weeks before the date of the dismissal of the employee.
6. For the purpose of Regulations 5 and 7 (b) of these Regulations, any week during which the employee concerned did not work shall be disregarded and the latest week before the period of 26 weeks mentioned in the said Regulation 5 or 7 (b), as the case may be, of these Regulations or before a week taken into account under this Regulation, as may be appropriate, shall be taken into account instead of a week during which the employee did not work as aforesaid.
7. ( a ) In the case of an employee who is paid remuneration in respect of the relevant employment wholly or partly at piece rates, or whose remuneration includes commissions (being piece rates or commissions related directly to his output at work) or bonuses, and in the case of any other employee whose remuneration in respect of the relevant employment varies in relation to the amount of work done by him, his weekly remuneration shall be the amount obtained by dividing the amount of the remuneration to be taken into account in accordance with paragraph (b) of this Regulation by the number of hours worked in the period of 26 weeks mentioned in the said paragraph (b) and multiplying the resulting amount by the normal number of hours for which, at the date of the dismissal of the employee, an employee in the relevant employment was required to work in each week.
(b) The remuneration to be taken into account for the purposes of paragraph (a) of this Regulation shall be the total remuneration paid to the employee concerned in respect of the employment concerned for all the hours worked by the employee in the employment in the period of 26 weeks that ended 13 weeks before the date on which the employee was dismissed, adjusted in respect of any variations in the rates of pay which became operative during the period of 13 weeks ending on the date of dismissal of the employee.
( c ) For the purposes of paragraph (b) of this Regulation, any week worked in another employment shall be taken into account if it would not have operated, for the purposes of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 (No. 4 of 1973), to break the continuity of service of the employee concerned in the employment from which he was dismissed.
8. (1) Where, under his contract of employment, an employee is required to work for more hours than the number of hours that is normal for the employment, the hours for which he is so required to work shall be taken, for the purposes of Regulations 4 and 7 (b) of these Regulations, to be, in the case of that employee, the number of hours that is normal for the employment.
(2) Where, under his contract of employment, an employee is entitled to additional remuneration for working for more than a specified number of hours per week—
( a ) in case the employee is required under the said contract to work for more than the said specified number of hours per week, the number of hours per week for which he is so required to work shall, for the purposes of Regulations 4 and 7 (b) of these Regulations, be taken to be, in his case, the number of hours of work per week that is normal for the employment, and
(b) in any other case, the specified number of hours shall be taken, for the purposes of the said Regulations 4 and 7 (b), to be, in the case of that employee, the number of hours of work per week that is normal for the employment.
9. Where, in a particular week, an employee qualifies for a payment of a bonus, pay allowance or commission which relates to work the whole or part of which was not done in that particular week, the whole or the appropriate proportionate part of the payment as the case may be, shall, for the purposes of Regulations 4 and 7 (b) of these Regulations, be disregarded in relation to that particular week and shall for those purposes, be taken into account in relation to any week in which any of the work was done.
10. An employee who is normally employed on a shift cycle and whose remuneration in respect of the employment varies having regard to the particular shift on which he is employed, and an employee whose remuneration for working for the number of hours that is normal for the employment varies having regard to the days of the week or the times of the day on or at which he works, shall each be taken, for the purposes of these Regulations, to be an employee who is paid wholly or partly by piece rates.
11. Where, in respect of the relevant employment, there is no number of hours for which employees work in each week that is normal for the employment, the weekly remuneration of each such employee shall be taken, for the purposes of these Regulations, to be the average amount of the remuneration paid to each such employee in the 52 weeks in each of which he was working in the employment immediately before the date of the relevant dismissal.
12. Where under these Regulations account is to be taken of remuneration paid in a period which does not coincide with the periods for which the remuneration is calculated, the remuneration shall be apportioned in such manner as may be just.
13. For the purposes of Regulations 4 and 7 of these Regulations, account shall not be taken of any sums paid to an employee by way of recoupment of expenses incurred by him in the discharge of the duties of his employment.
GIVEN under my Official Seal, this 7th day of September, 1977.
GENE FITZGERALD,
Minister for Labour.
EXPLANATORY NOTE.
These regulations prescribe the method of calculating weekly remuneration for the purpose of redress in the form of compensation under the Unfair Dismissals Act, 1977 .