Unfair Dismissal – Dismissal in Dispute

In unfair dismissal cases, sometimes it arises that the dismissal itself is disputed between the parties.

For example, the owner of a company informs a staff member there is no more work for them. The employer does not elaborate more than this, did not provide any letters of employment termination and communication of the dismissal was simply a sparse conversation between the employer and the employee.

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

Are Unfair Dismissal Claim Awards Taxable?

Such claims should be calculated via net payments, and yes, these claim awards are taxable in accordance with Revenue rules employment dismissals.

The maximum compensation awarded in unfair dismissal claims is 104 weeks of earnings losses.

Employee Rights when Faced with Allegation of Gross Misconduct ?

Employees have rights when faced with such a serious allegation ie involving gross misconduct and we can obtain guidance from a 2018 decision of the court of appeal, wherein it was stated that an employee was entitled to the following rights as part of fair procedures in a formal disciplinary procedure, namely :

  • The right to know the nature of the complaint/allegation against him;
  • The right to know the procedure to be followed in the course of the investigation;
  • The right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;
  • The right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;
  • The right to be heard in relation to the complaint/allegation and to make representations in relation thereto;
  • The right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;
  • The right to call witnesses in support of his stated position.

Disclaimer

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.