Unfair Dismissal

Employment dismissal is considered to be automatically unfair if the employee is dismissed for any of the following reasons:

  • Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours
    unfair-dismissal

    unfair-dismissal

  • Religious or political opinions
  • Legal proceedings against an employer where an employee is a party or a witness
  • Race, colour, sexual orientation, age or membership of the Traveller community
  • Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
  • Availing of rights under legislation to maternity leave,adoptive leave,carer's leave,parentalorforce majeure leave
  • Unfair selection for redundancy

 

When does an Unfair Dismissal arise ?

An Unfair Dismissal may arise in the following situations:

  1.  An employer terminates an employee’s employment, with or without notice.
  2. An employee terminates their employment, with or without notice, due to the conduct of the employer ( Constructive Dismissal ).

 

 Who is Eligible to make an Unfair Dismissal claim ?

An employee who has or is:

1. At least 1 years service (an exception to this rule includes dismissals in contravention of the Employment Equality Acts and unfair dismissal due to trade union activity, pregnancy or availing of rights in relation to maternity, parental leave, wages or carers legislation).
2. Employed under a contract of service (as opposed to a contract for service)
3. Dismissal occurred i.e. employment terminated (an exception to this rule is constructive dismissal where the employee resigns).
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.

Time Limit  -  Unfair Dismissal Claim

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.

Employee’s Service

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:

  • Trade union membership or activity
  • Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth
  • Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer's Leave Act 2001.

 

9 other Grounds when Dismissal is Prohibited:

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.

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, 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.

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.

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.

Redress for the Employee

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 favorable changes in the terms of employment during that period, and for example, pay rises.

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. 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 compensation of 4 weeks' pay.
  • 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.
  • 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.

 

How to Apply

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 a Rights Commissioner. If you or your employer, object to the claim being heard by a Rights Commissioner, the claim may be made directly to the Employment Appeals Tribunal (EAT). Complaints of discriminatory dismissal under equality legislation should be referred to the Equality Tribunal.

If a claim is heard by a Rights Commissioner, the Rights Commissioner will issue a recommendation and either you or your employer may appeal that recommendation to the Employment Appeals Tribunal.

Where a claim or an appeal is heard by the Employment Appeals Tribunal, the Tribunal will issue a determination. There is a right of appeal by either party to the Circuit Court from a determination of the Tribunal.

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. However, your former employer must also agree to the Rights Commissioner being involved otherwise 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.

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