If an employee is dismissed from their place of employment, they are entitled to commence an unfair dismissals action against their former employer.  

The law states the dismissal of an employee shall be deemed for the purposes of this Act (Unfair Dismissals Act) to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. 

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, its for the employer to show that the dismissal resulted because of one or more of the matters specified in Section 6 of the Unfair Dismissals Act (as amended).

The employers conduct in terms of the reason for the dismissal and any investigation procedures, disciplinary procedures, and sanctions will be assessed by an Adjudication officer in a case.

A problem arises though for an employee seeking to rely on the primary legislation being the Unfair Dismissals Act when the employee was on probation, or if the dismissal occurred during the first year of employment.  

Section 3 of the Unfair Dismissals Act states the following:  

This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

(a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or

(b) if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less.

So, relying on the Unfair Dismissals acts for an employee dismissed while on probation or during their first year in employment is a difficult task.

There is caselaw on this regarding claims taken by employees on probation and dismissed, and without the one year service period requirement under the Unfair Dismissals acts, where the complainants won their cases, but we will discuss this in another post.

So, what can employees on probation, or with less than the one year service period requirement who are unfairly dismissed do  ?.  

The employee may have the option of taking an unfair dismissal claim. There is a challenge for the applicant to take a case, in the above-mentioned circumstance, under the Unfair Dismissals Acts, but applicants with under the 1 year service period have been successful taking such claims.

Some employers seem to be content that they don’t have to treat employees fairly, like they would do if that employee had the one year service period completed, and hence attract the legal protection of the Unfair Dismissals Acts.  

Any employee unfairly dismissed on probation, or during their first year with the employer, can still seek a legal remedy for the unfair dismissal.   

Section 13 of the Industrial Relations Act 1969 states:

Where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner. 

An employee can refer a dispute to the Workplace Relations Commission under this act.

If a dismissal arose which is discrimination under one of the grounds in the Equality Act, an employee on probation, or with less than one years service, can take a legal action under the Equality Acts, which is a useful remedy option for the employee to invoke.  

Cleary & Co. Solicitors, Litigation Law Firm 

Kieran Cleary and Roger Cleary Employment Law Solicitors can help with questions you may have regarding employment law matters and our numbers are (01) 546 1121 or  (052) 612 1999 or our email address is info@clearysolicitors.com

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.