# How to get rid of an employee



## 90210 (28 Oct 2005)

If a company had an individual working for them for the past 35 years and they are circa 3/5 years away from retirement but they need to get rid of the individual now, what would be the best way.



Try to put them on a 3-day week



Make them redundant



This individual has good time, attendance etc, however they have serious people issues which are having a major detriment to the concern , this business is also unionised.



Any suggestions?


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## ClubMan (28 Oct 2005)

Presumably the employer would need to be careful not to engage in surreptitious and illegal constructive dismissal but rather adhere to the relevant statutory rights/obligations and the company disciplinary procedures set out in the contract of employment and elsewhere and give the employee the required number of verbal and written warnings before taking disciplinary action including reducing working hours or termination? Note also that employees are not made redundant - jobs are.


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## lz1 (28 Oct 2005)

90210, if the company is unionised there must be a correct HR structure in place where any issues that the company may have can be raised and acted upon.

Although it sounds like the company just wants to fire the person without following procedures.


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## efm (28 Oct 2005)

How about letting the employee retire early on full pension plus lump sum?

It could well work out cheaper in the long run!

If the employee has been there 35 years and is in a union I would think you will have some difficulties in getting rid of him / her - you will need to avoid a wrongful or constructive dismissal action.

An alternative is to move the employee to another job within the company that minimises the impact of the bad behaviour but once again you need to be mindful of constructive dismissal claims

If there is a "personality" problem then the company needs to work this out with the employee and give the employee time to change and reform - this process could drag on for three years anyway!

The 3 days a week might work if it is sold to the employee as a "reward" for the many years of excellent service


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## ClubMan (28 Oct 2005)

While there may be additional issues to consider in unionised employment I don't think that in this case this is necessarily significant - all employees, unionised or not, have certain statutory and contractual rights in the context of unfair/constructive dismissal. If in doubt the company should seriously consider getting legal advice on the employment issues relevant to any moves they may make to discipline or terminate the employee.


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## 90210 (28 Oct 2005)

Semantics aside , there is no corporate HR structure in place or disiplinary procedure to rely upon which is common place today, we are talking about a concern that has very little outside the written contract.
So tactically - 

Talk the guy into a 3 day week without a reduction in their pension
Lump Sum payoff.
Change or remove their responsibilities within the company and hope they get frustrated and then resign
(could be the option as this person is quite snappy and short fused)
or grin and bear it.

or hire a hitman.


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## ClubMan (28 Oct 2005)

Not sure what semantics you're referring to but if there is no disciplinary process in place (I thought that having one was mandatory?) then the employer needs to at least apprise themselves of the relevant statutory rights and obligations in this context before doing anything. Some of the strategies outlined above are quite dodgy from a legal point of view.


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## dam099 (28 Oct 2005)

90210 said:
			
		

> Change or remove their responsibilities within the company and hope they get frustrated and then resign
> (could be the option as this person is quite snappy and short fused)


 
That sounds dangerously close to constructive dismissal.


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## jhegarty (28 Oct 2005)

dam099 said:
			
		

> That sounds dangerously close to constructive dismissal.



its not close to it , its the dictionary definition of it


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## ajapale (28 Oct 2005)

The Japanese have perfected the "reverse headhunt" technique where by they get a proxy third party company to headhunt the individual and then then the proxy company makes the employee redundant at a later stage.

A legal but hardly ethical solution.

Closer to home I have seen such employees being offered early retirement on the understanding of some consultancy work which would extend after age 65.


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## Ms X (28 Oct 2005)

The Acts provide that every dismissal of an employee will be presumed to have been unfair unless the employer can show substantial grounds justifying the dismissal (entemp.ie)



Employers are required to: (From Oasis)


 to give appropriate warnings 
take adequate time to establish a case for dismissal 
investigate thoroughly all allegations 
allow the right to representation during the investigation 
In deciding a case, the body hearing it must take into account the reasonableness or otherwise of your employer's conduct. 
In addition, the question as to whether or not the employer had a dismissal procedure in place will also be taken into account. 
With the above in mind, the lack of procedure and the possible 'constructive dismissal', this could be very expensive for the company should the employee realise the opportunity to successfully sue!



And with their age, they could possibly seek redress under the equality legislation re any possible age discrimination if they feel this have something to do with his dismissal.



Beware!


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## Capaill (28 Oct 2005)

Not trying to divert from the main question, but if this person has been with the company 35 years and has personality issues, why has it taken so long for the company to look at dealing with the situation (in what seems a pretty dangerous way from a employment law point of view?)

C


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## RainyDay (28 Oct 2005)

90210 said:
			
		

> Talk the guy into a 3 day week without a reduction in their pension
> Lump Sum payoff.
> Change or remove their responsibilities within the company and hope they get frustrated and then resign
> (could be the option as this person is quite snappy and short fused)
> ...


If this is the best that management can come up with, I'd suggest that there is probably more fault with management that with the employee. How about the bleeding obvious solution; Approach the employee, explain the impact of his behaviour on others, and mutually agree a solution.


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## Sue Ellen (28 Oct 2005)

"Approach the employee, explain the impact of his behaviour on others, and mutually agree a solution"

After 35 years service its the least they deserve.


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## ClubMan (28 Oct 2005)

_90210 _- is this simply a troll? It's hard to believe that any employer would actually countenance dealing with this issue in the ways that you have outlined...


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## jhegarty (29 Oct 2005)

RainyDay said:
			
		

> If this is the best that management can come up with, I'd suggest that there is probably more fault with management that with the employee. How about the bleeding obvious solution; Approach the employee, explain the impact of his behaviour on others, and mutually agree a solution.



or maybe appoach the other and tell them they are the problem .... I perume this guy doesn't have a bad history of problems after 35 years ?


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## Lemurz (29 Oct 2005)

Our company has a guy with over 30 years service and was in a similar situation.  For the past years MDs have been dodging the issue.  Finally a lump sum payoff was offered/accepted, so he will be history before 2006.  It's amazing the positive impact the announcement has had in the company!

IMO - management bear responsibility for not attacking the issue sooner, but it would have been expensive 10 years ago versus now when he only has 3 years to retirement.


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## Henny Penny (30 Oct 2005)

My husbands company had a similar situation although the duration of the employment was only 20 years. The worker in question had their job made obsolete by a new computer system ... and was made redundant ... now people wonder what he ever did in the first place. 
This employee was given a reference and easily found alternative employment.


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## Brendan Burgess (30 Oct 2005)

90210 said




> This individual has good time, attendance etc, however they have serious people issues



If the people issues affect the other unionised staff they may well support efforts to resolve the problems. Have you had complaints about the individual from his colleagues? If they are just moaning, then ask them to make the complaints formal and ask the individual for a response.  Follow fair procedure. However, if you are found to have dismissed him unfairly, you will pay up to two years' remuneration as compensation.

Brendan


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## ClubMan (31 Oct 2005)

Brendan said:
			
		

> However, if you are found to have dismissed him unfairly, you will pay up to two years' remuneration as compensation.



Is that the maximum possible compensation? I would have expected it to be more than that and also the possibility that the company could be ordered to take the employee back on (probably unlikely in an acrimonious situation but you never know).


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## 90210 (31 Oct 2005)

Thank you all for your input, I know that some of you are astonished that such a situation can arise or that there is simply a procedural process that will remedy the matter completely. But it is more common that allot of you would think, especially in the private sector. I have a feeling that allot of respondents come from the Multi corporate or Public sector positions, where you cannot order a pencil without filling out a form. Private and SME business never fails to surprise me, its all about personalities. Procedures, meetings or the threat of legal action does not change people’s characters or attitudes, it merely puts them in abeyance until they can come at you again from another angle. I really like the Japanese method but very severe, I think the road I would choose to go down would be to organise formal complaints about the individual from other employees. Bring in the Union and then try to negotiate a reduced pay off on the basis of those complaints.


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## 90210 (31 Oct 2005)

Clubman "Note also that employees are not made redundant - jobs are."



Well said Clubman thought I heard that one before , it appears I did.



Clubman, nice to see you are taking advice from "Slash" as per the thread on "Redundancy on Maternity leave" back on the 20th.


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## ClubMan (31 Oct 2005)

90210 said:
			
		

> Clubman, nice to see you are taking advice from "Slash" as per the thread on "Redundancy on Maternity leave" back on the 20th.


Actually I hadn't read _Slash's_ post in that thread and knew this independenty. It's hardly rocket science.


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## RainyDay (31 Oct 2005)

90210 said:
			
		

> I think the road I would choose to go down would be to organise formal complaints about the individual from other employees. Bring in the Union and then try to negotiate a reduced pay off on the basis of those complaints.


There is still something fundamentally unfair with your 'organising' of complaints. Either the other employees have complaints, or they don't. The fact that you have organised these complaints may well weaken your case, if this ever came to a tribunal or court case. Your 'organising' of complaints is pretty mean. How would you like to be treated if some employees were complaining about your management skills?


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## CMCR (1 Nov 2005)

I wholeheartedly agree, RainyDay, it is most concerning that this employer is 'organising complaints' against an employee. Notwithstanding the fact that this behaviour it is *illegal* (and will have *serious consequences* for this employer if it is discovered), it is a cruel, shabby, disrespectful way to treat any human being. 

In my view, the options this employer has in terms of dealing with this employee are: 

1. formally meet with this employee and set out the 'people difficulties' that are so detrimental to the organisation. Allow the employee to respond. An open discussion could be a surprise to the employer. The root of the 'people difficulties' could be lack of motivation or boredom at work, domestic unhappiness, concerns about retirement, financial worries, or a range of other issues that could actually be resolved. In fact, just one meeting could allow both sides to see the other's view and both could then take steps to remedy, follow-up and review, etc. 

2. if the employer is determined this person should go, then they will have to look at whether they are entitled to dismiss this person. There is scope in instances of gross misconduct, persistent sick leave, and in other circumstances where an employer may terminate a contract of employment. The employer should seek legal advice on the matter - but it would seem that this employer won't even consider this. 

3. redundancy situations arise where the *job is gone*, and there is no alternative work matching the employee's skills. You might be interested to know, that many employees in Ireland each year take 'early retirement'. This is often in fact 'redundancy' situations. Would the employer not consider this option instead - that is 'offering an early retirement' package to this individual? Again - the redundancy situation must be genuine otherwise the employee could seek redress. I might have more information on this early retirement issue so if you PM me, I will forward this on to you. 

I might also suggest to this employer, that since they are engaging in 'orchestrating complaint's' against this employee, they should be aware the employee has the right to view this information and could in fact challenge these 'complaints' through the courts. 

On a final note, I think this is a sad reflection on this employer that following 30+ years service, they are subjecting an employee (any employee) to such poor treatment rather than managing the problem. Everyone in Ireland is entitled to fair procedure and the decision to 'organise complaints' is in direct contravention to this. 

I feel very sorry for this employee. Irrepective of 'people difficulties' nobody deserves to be treated like this. Consider carefully how you will proceed and be aware the course of action you are advocating is against the law. 

I am sure many people would be interested to hear how this turns out so perhaps you might post again here and let us know what happens.


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## 90210 (2 Nov 2005)

Sorry guys but when I stated, "organise complaints" I jumped the gun a little. The employer has received numerous verbal complaints from other staff members over the last year regarding this individual. I really meant that they should start an organised collation of complaints to include written statements and specific incidents just to verify that they have genuinely come from the other employees. I did not mean that we would manufacture or invent stories, KGB style, that’s totally illegal.

I know the whole issue sounds dreadful but the individual concerned has lost the plot and refuses to take time out which was offered (3 months paid leave), 3 or 4 day a week or take on an assistant to help with the day to day. There is also a serious underlining issue here but I could prejudice the thread if I included it, but I would tarnish any employees record.
CMCR will PM you.


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## onekeano (5 Nov 2005)

90210 said:
			
		

> Sorry guys but when I stated, "organise complaints" I jumped the gun a little. The employer has received numerous verbal complaints from other staff members over the last year regarding this individual. I really meant that they should start an organised collation of complaints to include written statements and specific incidents just to verify that they have genuinely come from the other employees. I did not mean that we would manufacture or invent stories, KGB style, that’s totally illegal.
> 
> I know the whole issue sounds dreadful but the individual concerned has lost the plot and refuses to take time out which was offered (3 months paid leave), 3 or 4 day a week or take on an assistant to help with the day to day. There is also a serious underlining issue here but I could prejudice the thread if I included it, but I would tarnish any employees record.
> CMCR will PM you.





90210, Have to say from reading the above you need proper advice on the approach taken here. I have been to the LRC / LC / EAT / Rights commissioners over the years in several dismissal cases (as the employer representative!). The guys who head up these organisations (People like Finbar Flood who was Chair of the Labour Court are brilliant.... they are generally very experienced professionals and know when people are a) trying it on and b) people are complying with legislation. They HATE to see managers coming in talking about warnings / complaints etc. if there is no supporting documentation.

They expect managers to manage their organisations in a fair and transparent manner and before you remove someone you need to have been able to demonstrate fairness over a period of time. Obviously things such as age / maternity etc are particularly sensitive. I would strongly advise that you get legal advice on this matter - if you are a member of IBEC of a similar organisatio engage them. Familiarise yourself and your co-managers with the legisaltion and ask youself "have we complied with this and and a fair way?"

You need to keep minutes of the meetings with the employee, allow the to have a friend or rep with them at the meeting. Explain to them the issues and whether it constitutes misconduct or gross misconduct and MOST IMPORTANTLY what the implications of their actions (or lack of...) are.

I know you say there is some other stuff there but from my unfortunate expereince of firing people I would assess the evidence provide to date as being totally insufficient and I would expect that the court would severely criticise management for not having documented case work done to date.

Is summary $$$$$$$$$..... happy days for the employee.

BTW in relation to Clubmans earlier response, the court very rarely opts to resinstate because one and probably both parties would see this as being unacceptable. So this gets taken into the equation when calculating $$$$$.

Roy


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## ClubMan (5 Nov 2005)

onekeano said:
			
		

> BTW in relation to Clubmans earlier response, the court very rarely opts to resinstate because one and probably both parties would see this as being unacceptable. So this gets taken into the equation when calculating $$$$$.


I seem to recall several judgements over the years in which the court ordered reinstatement and/or compensation - perhaps higher compensation if reinstatement was declined by either or both parties?


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## RainyDay (6 Nov 2005)

90210 said:
			
		

> Sorry guys but when I stated, "organise complaints" I jumped the gun a little. The employer has received numerous verbal complaints from other staff members over the last year regarding this individual. I really meant that they should start an organised collation of complaints to include written statements and specific incidents just to verify that they have genuinely come from the other employees. I did not mean that we would manufacture or invent stories, KGB style, that’s totally illegal.



To be honest, the 'organised collation' sounds pretty unfair to me (and possibly to a tribunal too?). Either your normal process for handling employee complaints includes written complaints & collation of such complaints, or it doesn't. This employee doesn't deserve 'special treatment'.



			
				onekeano said:
			
		

> BTW in relation to Clubmans earlier response, the court very rarely opts to resinstate because one and probably both parties would see this as being unacceptable. So this gets taken into the equation when calculating $$$$$.


Just FYI, I know of one case where the employee (senior white collar role) opted not to go through the tribunal route and instead took a high court case seeking re-instatement. This was simply a device to 'encourage' settlement, which the employer did, once the dirt started getting dished out on day 1 of the case.


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## onekeano (6 Nov 2005)

ClubMan said:
			
		

> I seem to recall several judgements over the years in which the court ordered reinstatement and/or compensation - perhaps higher compensation if reinstatement was declined by either or both parties?



The court in it's wisdom, knows that no employer in their right mind will want an employee who has won an unfair dismissal case against them back at work. Ergo this helps to focus the mind of the employer to settle. 

Obviously in most cases the employee does not really want to return to a workplace where they have been unfairly dismissed but from a strategic viewpoint that should be the declared preference of the claimant.

Roy


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## Marion (8 Nov 2005)

Two years' pay (104 weeks) is the maximum compensation under the Act, but it could be less depending on the *financial* loss suffered. There is no compensation for stress suffered.There are 2 other remedies, reinstatement as mentioned above and re-engagement. These remedies are rarely ordered.

The relevant redress section of the _Unfair Dismissals Act 1997_ is [broken link removed] 

I recall a manager (in Dunnes?) getting the maximum a number of years ago.

Marion


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## onekeano (8 Nov 2005)

Marion said:
			
		

> Two years' pay (104 weeks) is the maximum compensation under the Act, but it could be less depending on the *financial* loss suffered. There is no compensation for stress suffered.There are 2 other remedies, reinstatement as mentioned above and re-engagement. These remedies are rarely ordered.
> 
> The relevant redress section of the _Unfair Dismissals Act 1997_ is [broken link removed]
> 
> ...



It's not just financial loss (ie. loss of earnings), the court can decide to penalise the employer for bad / improper behaviour and this can increase the amount of the award.

Roy


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## ajapale (9 Nov 2005)

Hi Roy,



> the court can decide to penalise the employer for bad / improper behaviour



Would you be able to cite the relevant leglislation or examples of where this has happened?

Thanks,
aj


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## onekeano (9 Nov 2005)

ajapale said:
			
		

> Hi Roy,
> 
> Would you be able to cite the relevant leglislation or examples of where this has happened?
> 
> ...



Hi Aj,

What about Shinkwin vs Millet (see attached finding on page 4 of the attached) http://www.labourcourt.ie/labour/labour.nsf/LookupPageLink/HomeRecommendations

or the case of Citibank vs Ntoko (findings on page 5 of same document) I'm sure if you trawl through the document there are lots of other examples. Think there is a general misconception that it is only loss of earnings that the EAT compensate for. Not necessarily so,

Roy


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## ajapale (9 Nov 2005)

Thanks Roy,

aj


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## Marion (9 Nov 2005)

Hi Onekeano

Very interesting cases. Thanks.

However, I notice that in both the claim for redress was under the Equality Acts, and not under the Unfair Dismissal Acts, because they alleged they were dismissed as a result of discrimination.

If discrimination were not an issue, would they have received less compensation if they claimed under the Unfair dismissals Act itself?

Also, would you have any idea how long it takes for a case to be heard following the referral of cases to the EAT and the Labour Court. 

Thanks

Marion


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## onekeano (9 Nov 2005)

Hi Marion,

From this synopsis (2004 http://www.labourcourt.ie/labour/labour.nsf/LookupPageLink/HomeRecommendations )

it looks like pretty much every case qualifies under the equality act in some shape or form (an interesting Chinese take away story on page 7!!!)


Current leadtime for EAT or Labour court is 22-24 weeks, but you'd probably get a Rights Comissioner hearing before that and if not happy that can be appealed to the LC o EAT.

Roy


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## Marion (10 Nov 2005)

> it looks like pretty much every case qualifies under the equality act in some shape or form




So, it is obviously more lucrative for the employee (if they are successful and not all in the link were!) to take their case under the Equality Acts than under the Unfair Dismissals Acts.

Marion


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## onekeano (10 Nov 2005)

Marion said:
			
		

> and not all in the link were!
> Marion



It would be pretty amazing if all cases were successful surely?

I think the point is that people can (and obviously do) take a UD calim using the Equality Acts.

Roy


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## Marion (10 Nov 2005)

Hi Roy

I was thinking out loud and stating the obvious – not making any point. 

It’s always good to learn something new. It will help to keep me a few pages ahead 

Marion


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