What is the relief for an applicant who succeeds in an unfair dismissals action ?.
One redress is monetary and the other two involve being allowed to return to the place of employment the person was unfairly dismissed from.
The reliefs an adjudication case officer can award in unfair dismissals actions are set out in S.7 of the Unfair Dismissals Act 1977(as amended).
- Re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
- Re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
- if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed) as is just and equitable having regard to all the circumstances.
How is an unfair dismissal award calculated ?
In terms of financial compensation which can be awarded the maximum is 104 of a persons salary, and the adjudication officer assesses this from what they consider is fair and equitable after reviewing the particular facts.
Unfair Dismissal actions are valued and assessed by assessing what is the financial loss of the person.
For example, what is the financial loss of the person ie salary between the date of termination and the date of the case hearing ?.
What about a pension entitled though ?.
The legislation defines what financial loss is and it includes – actual loss – & – prospective loss of income related to the dismissal.
Financial loss can include i) actual loss ie net loss of income between the date of dismissal and date of the case hearing and ii) estimated future loss of income and iii) pension losses.
The cap of 104 weeks remains should the above losses amount to more than 104 weeks of the persons income from their former place of employment.
Frequently Asked Questions
Financial redress for unfair dismissal is explained in the paragraphs above and the maximum which can be awarded is 104 weeks remuneration.
This occurs where ones employment was dismissed unfairly and contrary to the legislation as set out in Section 6 of the Unfair Dismissals Act 1977(as amended) seen here.
What compensation is awarded is not dependant on whether the claim is for constructive or unfair dismissal.
One makes claim by completing and submitting an application form which can be located on the Workplace Relations Commission website see here.
This document can be complicated and, in our view, it would make things alot simpler if employment law was by root and branch codified in Ireland.
There are very strict legal time frames one has to make such a claim which is only within 6 months from the date of dismissal. Also, one should obtain legal advice before assessing the date of dismissal, as unfortunately it is not a straightforward matter in Irish Employment law as we have no codified legislation, so there are a number of Acts to consider when assessing what is the actual date of dismissal.
Constructive dismissal actions can be difficult to prove as there is a heavy burden on the employee in these actions, in our opinion.
Not only is the burden of proof on the employee in this action, unlike an unfair dismissal action, but the employee must also show they exhausted all internal grievance mechanisms prior to the date of dismissal, and this can be an onerous duty in circumstances where the employee left the employment due to the conduct of the employer, which may have become unbearable, so in many instances the employee leaves too early without availing of each and every internal grievance procedure available, and then the employer relies upon this in such actions to successfully defend them on many occasions.
What constitutes gross misconduct Ireland ?
We answer this in this post.
What are examples of gross misconduct ?
See this post for guidance.
What is the Unfair Dismissals Act
The primary Act is the 1977 Act, but it has been amended many times thereafter.
Here is the revised edition to November 2019.
How to you prove unfair dismissal ?
The burden of proof in unfair dismissal cases is on the employer to disprove it, if it has been established the person is an employee, was dismissed, and has the requisite service period completed.
Can an employer dismiss you without warning ?
There is strong employment law legal protection in Ireland, and it would be imprudent and contrary to fair procedures should this arise.
What can you do if you were fired unfairly ?
You may have a right to legal recourse in terms of activating a legal action under the Unfair Dismissals Acts, or other legislation.
DISCLAIMER – Calculating Loss in Unfair Dismissal Claim 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.
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.
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