Proving Fairness in Unfair Dismissals Actions

Many employees dismissed unfairly who wish to take a case are concerned the burden of proof is solely on them to prove the case and an employer may have an opposite evidential view of the facts.

The Unfair Dismissal Acts give legal protections for individuals against unfair dismissal.

The burden of proof in Unfair Dismissal cases is on the Employer to prove no unfair dismissal arose.

This is significant.

This post will give you further information on this issue.

If you have questions regarding unfair dismissal matters we will seek to answer any questions you have.

proving unfairness dismissal

Who must prove the decision to dismiss an employee was fair and reasonable and not contrary to the law in unfair dismissals actions?.  

Is the duty of the employer.

In unfair dismissals actions there is an obligation on the employer to show and satisfy the Adjudicator in the Workplace Relations Commission that the decision to dismiss the employee was a reasonable decision in the circumstances.  

Therefore, the Adjudicator can firstly listen to the employer’s evidence regarding the facts.

This will include the facts that led up to the dismissal.

So, if the issue was about an employee’s conduct, the Adjudicator will want to understand the conduct in question regarding the employee that led to the dismissal, in order to be able to then assess if the decision by the employer to dismiss the employee was fair.

Was the employer’s response and decision to dismiss the employee for the conduct complained of fair and proportionate ? will be assessed by the Adjudicator.

The law regarding employment dismissals in Ireland is that when an employee is dismissed by his employer, the dismissal is deemed an unfair dismissal unless the employer can a prove to the Adjudicator that there are substantial grounds to justify the dismissal.  

A dismissal will not be deemed unfair and contrary to the legislation if the employer can prove, for example, one of the following: 

The dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee,


d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The burden of proof on employers in these matters comes from the legislation which states: 

‘’In determining for the purposes of this Act 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 in subsection (4) of this section or that there were other substantial grounds justifying the dismissal’’.  

In the case of L. – V – L. UD843/1984 – Fairness Proof 

It was stated that ‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  

Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’ 

The Adjudicator in the Workplace Relations Commissions once presented with the evidence, will assess what a reasonable employer might have done in the circumstances. This is the standard an employer’s actions will be judged against.

The burden of proof is on the employer to prove that the dismissal was fair, but the employer must also prove that fair process and fair procedures were applied prior to the dismissal.

In O’Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows: 

In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.  

Disclaimer to this Prove Fairness Article

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.  

Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article. 

proving unfair dismissal

Employment Law Articles

Roger Cleary

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