Noel Ahern (Dublin North West, Fianna Fail)
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Question 128: To ask the Tánaiste and Minister for Enterprise, Trade and Employment the position regarding a construction worker laid off after several years of employment by a company (details supplied) and has been replaced by subcontractors; if same is in order; and if the process for the worker to pursue issues will be outlined. [41545/09]

Dara Calleary (Mayo, Fianna Fail)
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On the basis of the information supplied it is not clear if the employee was made redundant at a particular point in time or placed on a period of temporary lay off. A lay off situation exists when an employer suspends an employee's employment because there is no work available, when the employer expects the cessation of work to be temporary and when the employer notifies the employee to this effect. For a lay off situation to apply the period of lay off must be genuinely of a temporary nature.

In general, redundancy is a situation where an employee's job has been made redundant and the employee is not replaced. A key issue in respect of selection for redundancy is that the selection process must be seen to be fair and non-discriminatory. Should an individual feel that they have been unfairly dismissed by reason of unfair selection for redundancy, it is open to that individual to take a case to the Rights Commissioners or to the Employment Appeals Tribunal under the Unfair Dismissals Acts. The Unfair Dismissals Acts, 1977 to 2007 generally apply to any employee who has 12 months continuous service with the employer. In the case of a complaint referred to a Rights Commissioner, the employer may object and in that event the matter will be heard by the Employment Appeals Tribunal. If the employee has any further queries in this regard, they may contact the National Employment Rights Authority on their Lo-call number 1890 80 80 90 or via their website at www.employmentrights.ie

The Unfair Dismissals Acts provide that the dismissal of an employee shall be deemed, for the purposes of the Acts, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

- the capability, competence or qualifications of the employee for performing work of the kind which he/she was employed to do,

- the conduct of the employee (in which case the issue of disciplinary procedures may be important)

- the redundancy of the employee's job

In determining for the purposes of the Acts whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified above or that there were other substantial grounds justifying the dismissal.