An Unfair Dismissal may arise in the following situations:
An employee who has or is:
If an employer disputes the fact that a dismissal took place it is the responsibility of the employee to prove that it did occur. Subsequent to proving the dismissal, the claim proceeds to the next stage of deciding if the dismissal was fair or unfair.
At this stage the onus is on the employer to prove it was fair, except in the case of constructive dismissal where the onus is on the employee to show that the conditions of employment were such that they had no option but to leave.
The time limit for beginning a claim for unfair dismissal is 6 months from the date of the dismissal. 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.
The date of dismissal, under the unfair dismissals legislation, is the date on which the notice you were given expires. You are entitled to a statutory minimum period of notice if you have worked at least 13 weeks for your employer. Your written contract of employment may provide for a longer period of notice.
Normally you must have at least 12 months’ continuous service with your employer in order to bring a claim for unfair dismissal. However there are important exceptions to this general rule. If you have less than 12 months’ continuous service you may bring a claim for unfair dismissal if you are dismissed for:
Employment equality legislation prohibits dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal.
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, that is, a contractor. In the case of agency employees, for the purpose of redress under the Acts, the employer is the person or organization for whom the employee is actually working.
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.
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.
If you are successful in your claim for unfair dismissal, the body that heard your claim may award you one of the following remedies:
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, and for example, pay rises.
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.
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:
If you wish to make a claim for unfair dismissal you should do so within 6 months of the date of dismissal. This time limit may be extended to 12 months in cases where exceptional circumstances have prevented the lodgement of the claim within 6 months.
If you qualify under the unfair dismissals legislation, you may bring your claim to the Workplace Relations Commission.