Unfair Dismissal in Ireland,Notice,Employment Terms,Redundancy-Myles & Co., Solicitors.

Unfair dismissal from employment

Information
The legislation in Ireland governing unfair dismissal from employment does not actually protect you from dismissal, rather it provides a system of appeal whereby you can question the fairness of your dismissal after it has occurred.
You will generally require one year's continuous service to bring a claim under the legislation, although there are specific exceptions to this. The claim must be made within 6 months of the dismissal, although this can be extended in exceptional circumstances to 12 months.
You will have to show that you qualify to claim under the legislation. If you do this and your employer accepts that there was a dismissal, it will be for your employer to show that the dismissal was fair.
If you are found to have been unfairly dismissed you may be placed back in your job or, more commonly, you may receive compensation for the loss of earnings caused by the dismissal.

Qualifying to bring a claim
Time Limit
You have six months to commence your claim for unfair dismissal from the date the dismissal took place. If there are "exceptional circumstances", you may be allowed to extend this period up to 12 months from the date of dismissal. However, these must be exceptional circumstances - saying you did not know the law will not suffice.
For the purposes of the Unfair Dismissals Acts, the date of dismissal is the date on which obligatory notice, if given, expires or, if not given, would have expired had it been given. (Obligatory notice is the notice to which the employee is entitled by the Minimum Notice Act or by the employee’s written contract of employment).
Service
The Unfair Dismissals Acts apply to an employee who has at least 12 months continuous service with his/her employer. However the Acts will apply to the dismissal of an employee who has less than 12 months continuous service if the dismissal results wholly or mainly from:
Trade union membership or activity;
An employee's pregnancy, giving birth or breastfeeding or any matters connected therewith;
The exercise or proposed exercise by an employee of a right under the Maternity Protection Act, 1994;
An employee's entitlements, future entitlements, exercise or proposed exercise of rights under the National Minimum Wage Act, 2000
The exercise or proposed exercise by an employee of the right to adoptive leave or additional adoptive leave under the Adoptive Leave Act, 1995;The exercise or proposed exercise by an employee of the right to parental leave or force majeure leave under the Parental Leave Act, 1998
The exercise or proposed exercise by an employee of the right to carer's leave under the Carer’s Leave Act, 2001.
In general, the continuity of an employee's employment is only broken by the dismissal of the employee by the employer or the termination of the employment by the employee.
Employment status
You must be an employee, working under a contract of service. The essential element of such a contract is that the relationship is one of employer/employee, as opposed to a contract for services where the relationship involves performing a service in return for payment, i.e. a contractor.
The fact of dismissal
You must have been dismissed in order to bring a claim. The one exception to this is the concept of "constructive dismissal" where you resign but claim that your employer's conduct towards you forced your resignation. (See section below on constructive dismissal)
If your employer disputes that a dismissal actually took place, you will have to establish that it did. Only then will your claim continue to the next stage of deciding whether the dismissal was fair, which is a matter for your employer to prove.
Excluded categories
Except in so far as any provision of the Unfair Dismissals Acts otherwise provides the Acts shall not apply in relation to any of the following persons:
(a) an employee who is dismissed, who, at the date of his/her dismissal, had less than one year's continuous service with the employer who dismissed him/her
(b) an employee who is under 16, or a person who is dismissed having reached the compulsory retiring age for employees of the same employer in similar employment.
(c) an employee who is employed by a close relative, and who resides with that relative and the place of employment is that residence
(d) a person in employment as a member of the Defence Forces, the Judge Advocate General, the chairman of the Army Pensions Board or the ordinary member thereof who is not an officer of the Medical Corps of the Defence Forces
(e) a member of the Garda Siochána
(f) a person (other than a person employed under a contract of employment) who is receiving a training allowance from and/or undergoing instruction by FÁS.
(g) a person employed who is employed by FÁS under a contract of apprenticeship.
(h) a person employed by or under the State, other than certain industrial workers. This is generally taken to mean civil servants with officer status, but does not include employees of semi-state companies.
(i) officers of a Health Service Executive (HSE) Area (previously known as 'health boards') (other than temporary officers) or a vocational education committee.
(j) an employee who is employed under a fixed term/specified purpose contract and where the contract is in writing, is signed by both parties and contains a clause that the Acts shall not apply in relation to a dismissal consisting only of the expiration of the fixed term contract or the completion of the specified purpose. See further notes on "Fixed-term/specific purpose contracts" below.
(k) an employee who is both employed and resident outside the State.
(l) an employee who is dismissed during a period at the beginning of employment when he/she is on probation or undergoing training, provided that the contract is in writing and the duration of probation or training is one year or less and is specified in the contract.
(m) an employee who is dismissed during a period starting with the commencement of the employment when he/she is undergoing training for the purpose of becoming qualified or registered, as the case may be, as a nurse, pharmacist, health inspector, medical laboratory technician, occupational therapist, physiotherapist, speech therapist, radiographer, or social worker.
(n) an employee who is employed under a statutory apprenticeship and who is dismissed within 6 months after the commencement of the statutory apprenticeship or within 1 month after the completion of the apprenticeship.
If the dismissal of an employee results wholly or mainly from the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave under and in accordance with the Parental Leave Act 1998, or Carer's Leave under and in accordance with the Carer's Leave Act, then the exclusions referred to at (a) (b) (c) (e) (f) (g) (h) or (i) above shall not apply to the employee concerned.
If the dismissal of an employee results wholly or mainly from the employee's trade union membership or his/her engaging in activities on behalf of a trade union (where such activities are outside his/her hours of work or are times during his/her hours of working in which he/she is permitted so to engage) then exclusions (a) (b) (l) (m) or (n) shall not apply to the employee concerned.
If the dismissal of an employee results from his/her entitlements, future entitlements, exercise or proposed exercise of entitlements under the Minimum Wage Act, 2000, then exclusion (a) above shall not apply to the employee concerned.
The Unfair Dismissals Acts will not apply to a dismissal where the employee's employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on:
Protective leave or natal care absence, within the meaning of the Maternity Protection Act, 1994
Adoptive leave or additional adoptive leave under the Adoptive Leave Act 1995
Carer's Leave under the Carer's Leave Act 2001
and the dismissal of the employee duly occurs for the purpose of facilitating the return to work of the employee who has been on the leave.
Justifying the dismissal
If you establish your right to bring a claim and that there was a dismissal, the onus of proof will be on your employer to show that the dismissal was a fair one.
Your employer must show that your dismissal was connected with one or more of the potentially fair grounds set out in the legislation.
Your employer must show that he/she acted fairly.
Your employer will have to disprove any allegation by you that your case involves any of the automatically unfair reasons for dismissal.
Your employer can rely on one or more of the following to show that the dismissal was fair:
Your capability
Capability-related dismissals usually centre on issues like lateness, absenteeism and persistent absence through illness.
If lateness/absenteeism is at issue, your employer will be expected to have documentary proof of this allegation, such as clocking in records or documented absences on file that are not medically certified. In addition, your employer will also be expected to show that you were made aware of the problem and warned as to the consequences for your continued employment.
If illness or injury is at issue, it is often assumed that you cannot be dismissed fairly while on certified sick leave from your work. However, this is not true. It is difficult to lay down hard and fast rules to apply to these cases as each will be treated on its own merits. Issues such as length of service, previous record and the importance of the job will vary and will have to be taken into account. These types of claim are often divided into short-term and long-term absences.
Short-term illness-related dismissal generally occurs where you have a medical problem that results in frequent absences for short periods from the workplace. Assuming that your employer is not questioning the genuine nature of your problem, he/she will be expected to have:
established that a pattern of absence exists and that it is causing problems
satisfied himself/herself that the problem is unlikely to get better in the long run
warned you that dismissal is likely to result if things do not improve.
Many of the same considerations exist in a long-term absence case. However, your employer here will be expected to obtain detailed medical evidence that an early return to work is unlikely. There is no set period of absence by which it can be said that a dismissal will or will not be considered reasonable. Obviously, the longer the absence, the easier it is for your employer to show that it is causing genuine difficulty in terms of the organisation of the workplace.
In terms of medical evidence, your employer may require you to attend his/her own medical expert because he/she is doubtful or uncertain about your doctor's view. If there is a conflict of medical evidence between you and your employer as to the possible return date, your employer will be expected to get a second opinion before taking the decision to dismiss.
Your competence
Competence refers to your ability to do your job. In the first place, you need to be made aware of the standards that are expected of you and these must refer to the job you were hired to do.
Secondly, if you fall short of the required standard, this must be clearly explained to you. This should be done through a formal set procedure. Your employer should also specify what improvements are necessary. These should be achievable and a reasonable timeframe must be allowed for the improvement.
Ultimately, a final warning setting out the likelihood of dismissal should be given to the employee.
Your qualifications
The kind of situation envisaged by this form of dismissal can take two forms. Either you mislead your employer about qualifications you had when applying for the job or your employer made continued employment conditional upon you obtaining further qualifications and you failed to achieve this.
Your conduct
Conduct covers a very large area of behaviour and might be more accurately termed misconduct. There is a need to distinguish between gross misconduct and ordinary instances of misconduct.
Gross misconduct may give rise to instant (summary) dismissal without notice or pay in lieu of notice.
Other instances of misconduct may be a series of minor incidents which, when taken together, are enough to warrant dismissal, although your employer is obliged to give you notice or pay in lieu of notice in this type of situation.
Your employer will need to investigate each situation adequately to ensure that he/she has all the facts of the case. Other than cases of gross misconduct, it is essential that you have received appropriate warnings about your conduct and been made aware that dismissal may result if the problems continue. In this way, you are given a chance to improve your conduct.
Redundancy
In this instance, your employer will want to establish that a redundancy situation existed and that therefore the dismissal was fair. To counter this, you may present one or more of the following arguments:
That there is no economic justification for the redundancy, e.g., the company is trading profitably.
That you have been replaced
That you were unfairly selected for redundancy
That you were selected for redundancy on discriminatory grounds, such as gender, marital status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community.
Your continued working would contravene the law
For example, you need a current driving licence to work, but you have lost your licence on a drunk driving charge. You cannot continue to work without breaking the law and dismissal may be justified. Although even in such a case, your employer might be expected to look at alternatives depending on all the facts of the case.
There are other "substantial grounds" justifying your dismissal
Your employer will be required to specify the other substantial grounds upon which he/she is relying, in order to justify your dismissal.
The requirement to "act fairly"
Your employer is required to:
to give you appropriate warnings
take adequate time to establish a case for dismissal
investigate thoroughly all allegations
allow you 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 your employer had a dismissal procedure in place will also be taken into account.
The Labour Relations Commission has published a Code of Practice on disciplinary procedures.
Unfair reasons
The unfair dismissals legislation sets out a number of grounds that will be taken to be unfair. The legislation covers dismissals due to:
Taking part in a strike or industrial action
Membership, proposed membership or someone else's proposed membership of a trade union or for engaging in trade union activities within permitted times during work or outside of working hours
Religious or political opinions
Civil or criminal proceedings, actual, threatened or proposed against your employer either where you are a party to the proceedings or a potential witness
Your race, colour or sexual orientation
Your age or membership of the Traveller community
Your pregnancy, giving birth or breastfeeding or any matters connected therewith
Exercising, or proposing to exercise, rights under the Adoptive Leave Act, 1995
Exercising, or proposing to exercise, rights under the Parental Leave Act, 1998
Exercising, or proposing to exercise, rights under the National Minimum Wage Act, 2000
Unfair selection for redundancy
Exercising, or proposing to exercise, rights under the Maternity Protection Act 1994
Exercising, or proposing to exercise rights under the Carer’s Leave Act, 2001
Constructive dismissal
Constructive dismissal arises where you terminate your contract of employment, with or without prior notice, due to the conduct of your employer. However, your employer's conduct must have been such that it would have been reasonable for you to terminate your contract without giving notice.
Your employer's conduct may amount to an actual breach of your contract of employment or, though it falls short of such a breach, is serious enough to warrant resignation.
Conduct by fellow employees that goes unchecked by your employer may also be taken into account in relation to constructive dismissal.
There are a number of points you should note:
It will be for you to prove that your resignation was justified
You should use any complaints or grievance procedure that is available to you before resigning
You should also consider using any outside industrial relations procedures available to you before resigning.
Fixed-term/specific purpose contracts
A fixed-term contract is a contract of a specific length and the duration of the contract is known to both parties from the outset.
A specific purpose contract is also of a limited duration, but the parties do not know the length of the contract from the outset. It will be envisaged that it is of limited duration to end when the specific purpose of the contract is completed.
The unfair dismissals legislation specifies that under certain conditions the expiry of one of these contracts will be excluded from the operation of the legislation. The three conditions to be met in order to bring this exclusion into play are:
The contract must be in writing and must set out the specific duration of the fixed-term contract or, in the case of a specific purpose contract, the object of the contract.
The contract must be signed by both the employee and the employer
The contract must contain a specific clause stating that the Unfair Dismissals Acts will not apply to the expiry of the term of the contract.
If these conditions are not met then you may have a claim for unfair dismissal despite the fact that you are employed under a fixed-term or specific purpose contract, subject to fulfilling the normal requirements as to length of service, etc.
It should also be noted that even if your contract fulfills all the conditions set out above to exclude the operation of the unfair dismissals legislation, this might not be the end of the matter. The body hearing your claim (either Rights Commissioner or Employment Appeals Tribunal or Circuit Court) may examine any second or subsequent fixed term or fixed purpose contract of employment between which there was no more than a 3 month break and take a view as to whether the fixed nature or fixed purpose of the contract was wholly or partly for or connected with the avoidance of liability under the Unfair Dismissals Acts. Where it is so found, the length of the various contracts can be added together for the purpose of determining the length of service for eligibility under the Acts, and the service shall be deemed to be continuous. In these circumstances the case will proceed like any other claim for unfair dismissal.
Redress
If you are successful in your claim for unfair dismissal, the body that heard your claim may award you one of the following remedies:
Reinstatement
This means that you are treated as if you had never been dismissed. Not only are you entitled to loss of earnings from the date of the dismissal to the date of the hearing, you are also entitled to any favourable changes in the terms of employment during that period, for example, pay rises. This remedy is rarely used.
Re-engagement
This means that you will be given your job back but only from a particular date, for example, the date of the decision in your favour. This means that you will not be entitled to compensation for any loss of earnings. Often this remedy is used where it is felt that the employee contributed to the dismissal, even though the actual dismissal was unfair. Again, however, this remedy is rarely used.
Compensation
This is the most common remedy. In recent years, compensation has averaged under 6,348.69 euro and it is essential to note that compensation is only awarded in respect of financial loss. You cannot therefore claim any compensation for such matters as injury to your feelings or stress caused by the dismissal.
Compensation will take the following matters into account:
Present loss - a calculation of your loss of earnings from the date of the dismissal to the hearing of your claim. Any money earned by you during this period will be deducted, as will any payment in lieu of notice received by you when you were dismissed. You are also obliged to lessen your losses during the period from your dismissal to the hearing by being available for and seeking alternative employment. If it transpires that you have no actual loss, because, for example, you took up other employment immediately after your dismissal, you are entitled to a token four weeks compensation award.
Future loss - a calculation will be made as to your future loss, based on a consideration of how long it is likely to be before you can get alternative work.
Pension loss - a calculation that will try to assess what impact the unfair dismissal has had on your pension entitlements.
Loss of statutory protection - a calculation dealing with the point that you will have lost protection under the unfair dismissals, redundancy and minimum notice legislation.
Contributory conduct - a calculation that will take into account any conduct by you that contributed to the dismissal, even though it was an unfair dismissal. The degree of contribution will be stated in percentage terms and your award overall award reduced accordingly.
When you cannot bring a claim under the unfair dismissals legislation
If you are dismissed but do not qualify to bring a claim for unfair dismissal under the relevant legislation, you can ask the Rights Commissioner to investigate your case under the Industrial Relations Acts. For example, you have been working for your employer for less than a year and do not come under one of the exceptions already outlined.
However, your former employer must also agree to the Rights Commissioner being involved. If he/she does not agree, the Rights Commissioner will not be able to proceed with your case. If your employer does agree, then the Rights Commissioner will hold a hearing into the dispute.
The Rights Commissioner may try to reach a settlement or, if this is not possible, will issue a recommendation on the dispute. This recommendation, however, is not legally binding on the parties.
The legislation covering unfair dismissals is contained in the Unfair Dismissals Acts 1977-2001.
(oasis.gov.ie)
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