Employment dismissal is considered to be automatically unfair if the employee is dismissed for any of the following reasons:
- Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours.
- Religious or political opinions.
- Legal proceedings against an employer where an employee is a party or a witness.
- Race, colour, sexual orientation, age or membership of the Traveller community.
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth.
- Availing of rights under legislation to maternity leave,adoptive leave,carer’s leave, parental or force majeure leave
- Unfair selection for redundancy.
When does an Unfair Dismissal arise?
An Unfair Dismissal may arise in the following situations:
- An employer terminates an employee’s employment, with or without notice.
- An employee terminates their employment, with or without notice, due to the conduct of the employer (Constructive Dismissal).
Who is Eligible to make an Unfair Dismissal claim?
An employee who has or is:
- At least 1 years service(an exception to this rule includes dismissals in contravention of the Employment Equality Acts and unfair dismissal due to trade union activity, pregnancy or availing of rights in relation to maternity, parental leave, wages or carers legislation).
2. Employed under a contract of service (as opposed to a contract for service).
3. A Dismissal occurred i.e. employment terminated (an exception to this rule is constructive dismissal where the employee resigns).
If an employer disputes the fact that a dismissal took place, it is the responsibility of the employee to prove that it did occur. Subsequent to proving the dismissal, the claim proceeds to the next stage of deciding if the dismissal was fair or unfair.
At this stage the onus is on the employer to prove it was fair, except in the case of constructive dismissal where the onus is on the employee to show that the conditions of employment were such that they had no option but to leave.
Time Limit – Unfair Dismissals Legal Action
The time limit for beginning a claim for unfair dismissal is 6 months from the date of the dismissal. If there are exceptional circumstances, you may be allowed to extend this period up to 12 months from the date of dismissal. However, these must be exceptional circumstances – saying you did not know the law will not suffice.
The date of dismissal, under the unfair dismissals legislation, is the date on which the notice you were given expires. You are entitled to a statutory minimum period of notice, if you have worked at least 13 weeks for your employer. Your written contract of employment may provide for a longer period of notice.
Normally you must have at least 12 months continuous service with your employer in order to bring a claim for unfair dismissal. However there are important exceptions to this general rule. If you have less than 12 months continuous service, you may bring a claim for unfair dismissal, if you are dismissed for:
- Trade union membership or activity.
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth.
- Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001.
9 other Grounds when Dismissal is Prohibited:
Employment equality legislation prohibits dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community.
So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal under the Equality Acts.
You must be an employee, working under a contract of service.
In the case of agency employees, for the purpose of redress under the Acts, the employer is the person or organization for whom the employee is actually working.
The fact of Dismissal
You must have been dismissed in order to bring a claim.
If your employer disputes that a dismissal actually took place, you will have to establish that it did. Only then will your claim continue to the next stage of deciding whether the dismissal was fair, which is a matter for your employer to prove.
Redress for the Employee
If you are successful in your claim for unfair dismissal, the body that heard your claim may award you one of the following remedies:
This means that you are treated as if you had never been dismissed. Not only are you entitled to loss of earnings from the date of the dismissal to the date of the hearing, you are also entitled to any favourable changes in the terms of employment during that period, and for example, pay rises.
This means that you will be given your job back but only from a particular date, for example, the date of the decision in your favour. This means that you will not be entitled to compensation for any loss of earnings.
It is essential to note that compensation is only awarded in respect of financial loss. You cannot therefore claim any compensation for such matters as injury to your feelings or stress caused by the dismissal. Compensation will take the following matters into account:
- Present loss – a calculation of your loss of earnings from the date of the dismissal to the hearing of your claim. You are obliged to lessen your losses during the period from your dismissal to the hearing by being available for and seeking alternative employment. If it transpires that you have no actual loss, because, for example, you took up other employment immediately after your dismissal, you are entitled to compensation of 4 weeks pay.
- Future loss – a calculation will be made as to your future loss, based on a consideration of how long it is likely to be before you can get alternative work.
- Contributory conduct – a calculation that will take into account any conduct by you that contributed to the dismissal, even though it was an unfair dismissal. The degree of contribution will be stated in percentage terms and your award overall award reduced accordingly.
How to Apply
If you wish to make a claim for unfair dismissal you must do so within 6 months of the date of dismissal. This time limit may be extended to 12 months in cases where exceptional circumstances have prevented the lodgement of the claim within 6 months.
The Workplace Relations Commission is the body to hear the case.
Frequently Asked Questions
What constitutes gross misconduct Ireland ?
We answer this in this post.
What are examples of gross misconduct ?
See this post for guidance.
Do you always get sacked for gross misconduct ?
This is dependant on the individual employer. If the employer is aggrieved at conduct of the the employee, the employee still has a right to a fair investigation of the matter to put in his / her defence with any relevant witnesses etc.
Do I have to attend a disciplinary hearing for gross misconduct ?
You should attend such a meeting. The sanction applied by the employer to the conduct complained of has to be proportionate, and the employee should be afforded a right of appeal.
Does a disciplinary mean dismissal ?
No, dismissal is the last and ultimate sanction an employer can choose. There are vary other lessor severe sanctions available to the employer and the employer must be proportionate in the sanction decision.
Can you appeal a decision for gross misconduct ?
It is important to assess if the proper procedures were followed prior to the decision to dismiss. Was an investigation carried out ? for example. Was the person allowed to prepare for the investigation, defend themselves, have a witness as to fact etc. and if a decision was made a disciplinary hearing to dismiss, was there a right of appeal afforded to the person, for example.
How to you prove gross misconduct ?
If there is cctv or witnesses as to the fact, witness statements may be sought and availed of. What is the evidence of each party relevant to the facts will likely be assessed.
What do you get for unfair dismissal ?
This is answered above.
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 much compensation do you get for unfair dismissal in Ireland ?
This is answered above. The max is up to 104 weeks ie salary remuneration if successful.
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.
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.
In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.