Understanding Disputed Dismissals Under Irish Employment Law

The employee is of the view that they have been dismissed, and as they dispute the fairness of the decision to dismiss, they seek to avail of and activate a legal right under the Unfair Dismissals legislation by lodging a complaint.

Evidently, an important question to ask is did the employer stop paying the employee? if they gave the employee no proper explanation and information regarding the dismissal. In other words, what were the subsequent actions of the employer after the initial conversation took place.

The law states at S.6 of the Unfair Dismissal Ireland Act 1977(as amended)

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

Therefore, there must firstly be a dismissal in order for the former employee to rely upon the legislation.

In Redmond, regarding Dismissal, it was stated:

In general, a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leading to a dismissal was intended or may reasonably be inferred as having been intended …. dismissal requires communication to the employee to be effective”.

Therefore, what the employer said about the dismissal and what the employer then did afterwards, ie not pay a salary, furnish a P45, for example, will be assessed to establish the preliminary point ie did a dismissal actually occur? as was the intention of the employer.

Onus on the Employer

Once it is established in a case the applicant was an employee, was dismissed, had the requisite period, if this is required, then the onus is on the employer to show there were ‘substantial grounds’ for the dismissal.

Would a Reasonable Employer have made the decision to dismiss the employee in the circumstances? will be assessed.

Was the decision to dismiss the employee within the range of reasonable responses? will be assessed in a case.

Did the employer adopt and implement fair and appropriate procedures in relation to the employee prior to dismissal? will be assessed.

Also, the decision to dismiss the employee was proportionate to the conduct of the employee will be assessed, if this arises.

Unfair Dismissal Claim & CCTV

If an employer has CCTV footage of an employee with alleged misconduct behaviour, should this footage be shown to the employee during the investigation stage of the complaint? is a question that has been asked in unfair dismissal claim cases in Ireland.

The answer is yes.

Fair Procedures in CCTV Evidence and Employee Investigations

If an employer has an issue with the employee they consider serious and perhaps they suspend the employee, then it is very important they follow fair procedures and show the CCTV footage to the employee and the employer could furnish a copy of the CCTV footage to the employee.

In unfair dismissal claim cases the burden of proof is on the employer to demonstrate they acted reasonably as a response to the conduct complained of and by dismissing the employee.

If an employer fails to permit the employee to view the CCTV footage, notwithstanding relying upon the evidence within the CCTV footage to sanction the employee, the employer may be unable to justify the decision to dismiss on reasonable grounds.

By not permitting the employee access to the CCTV footage, the investigation / disciplinary processes can be tarnished, as the employee didn’t have the opportunity to respond and defend themselves with respect to the video evidence, and an employee will have a persuasive argument that they should succeed in an unfair dismissal claim.

S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000

Disciplinary meetings / procedures should be dealt with fairly.

This code of practice should be followed by employers and employees alike seen here.

Legal Action Process 

If you feel you have been dismissed unlawfully, you can proceed to make a complaint to the Workplace Relations Commission.

The complaint form is listed on the said commissions website. We are biased maybe, but we would suggest a person sits down with a solicitor before completion of this application form, as it can be quite detailed and you must prepare a statement of events as part of the application form.

This is the first document describing the facts an Adjudicator will see. 

The matter can proceed to Mediation and/or Adjudication in the workplace relations. Cases of this nature generally proceed relatively quickly after they are submitted to the Workplace Relations Commission. 

There are very strict timelines in terms of commencing unfair / constructive dismissal cases, and any cases brought outside the requisite time period can be what is termed statute barred.

You must submit your claim to the Workplace Relations Commission within 6 months of the date of dismissal.  

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