Unfair Dimissal

Termination of Employment – Unfair Dismissals Acts 1977-2007

Employees that are aggrieved on how they have left their employment have a choice of two legal remedies:

  • An action for wrongful dismissal in the civil courts where breach of contract or breach of constitutional rights is alleged. There is a 6-year limitation period and damages are unlimited;
  • A claim within 6 months (12 months in “exceptional circumstances”) of the date of dismissal to the Employment Appeals Tribunal or Rights Commissioner under the Unfair Dismissals Acts 1977-2007.

Redress for unfair dismissal under the Unfair Dismissals Acts apply to employees who:

  • Are 16 years of age or over;
  • Have one year’s continuous service. This service is not necessary where dismissal is on grounds of age, religion, race, trade union activity or pregnancy related matters;
  • Have been dismissed or can prove that the employer’s conduct was so unreasonable that resignation was justified;
  • Are employed by or through and employment agency or direct by the employer;
  • Are employed under a contract of employment;

Presumption of Unfair Dismissal

Once it is accepted that the employee was dismissed then the onus is on the employer to prove that the dismissal was not unfair.

Certain specific grounds for dismissal are also deemed to be unfair:

  • pregnancy or related matters
  • religious or political opinions
  • age
  • taking legal action against the employer
  • trade union membership / activity
  • sexual orientation
  • exercising statutory maternity rights
  • membership of the travelling community

Grounds Substantially Justifying Dismissal

  • Fixed term contracts and fixed purpose contracts (with certain exceptions)
  • Conduct
  • Capability, competence or qualification
  • Redundancy provided selection criteria and procedures are fair
  • Other substantial reasons

Disciplinary Procedures under the Unfair Dismissals Acts

There is a legal obligation on all employers to supply all employees, not later than 28 days after commencing employment, with written procedures that the employer will observe before dismissing an employee. Any changes to the procedure must be notified to the employee within 28 days of the change being made.

The best practice for disciplinary and grievance procedure sis well set out in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) Declaration Order, 2000, (S.I. 146/2000). This Code of Practice is used by the courts and Employment Appeals Tribunal as a method to measure an employer’s procedures.

The use of disciplinary procedures is strongly recommended to employers where an employee’s conduct, attendance or performance is of concern. Failure to use or comply with procedures, of itself, may render the dismissal unfair.

Disciplinary action may include:

  • Oral Warning
  • Written Warning
  • Final Written Warning
  • Suspension (without pay)
  • Transfer to another section of the company or another task
  • Demotion
  • Other Appropriate Disciplinary action short of dismissal
  • Dismissal

The test in this situation is: what would a reasonable employer do?

There is no set rule about how many warnings there should be in any case but procedures adopted should normally include graduated steps from verbal and written warnings to suspension of pay and eventual dismissal.

Grievance procedures set out in the company handbook or contract should always be followed by the employer and if appropriate, the employer should notify the employee of any shortcomings, suggest improvements and give a period of time in which to make the improvements.

The employee should also be notified of the consequence of not making the improvements e.g. dismissal might be considered. In cases of serious misconduct, it may be appropriate to move to a later stage of the procedure much more quickly. If requested, an employer must give the reason(s) for dismissal in writing within 14 days of the request.

See Labour Relations Commission website: http://www.lrc.ie/

Procedures and Enforcement

A claim under the Unfair Dismissals Acts may be brought, in writing, to a Rights Commissioner or Employment Appeals Tribunal within 6 months of the date of any contravention (twelve months in “exceptional circumstances”).

Redress

  • Reinstatement, or
  • Re-engagement, or
  • Compensation to a maximum ceiling of 2 years’ remuneration, which includes salary, benefits in kind (car, VHI, lodgings etc.) and employers pension contributions.

Awards of compensation are usually based on the actual financial loss of the employee however in cases of no loss e.g. where the employee is immediately employed at the same salary the Tribunal has discretion to award up to four weeks remuneration.