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Introduction
Under the Unfair Dismissals Acts circumstances in which unfair dismissal can occur are where:
If you are dismissed from your employment, you may, under certain conditions, bring a claim for unfair dismissal against your employer. The unfair dismissals legislation does not actually protect you from dismissal, rather it provides a system of appeal whereby you can question the fairness of your dismissal after it has occurred.
You will have to show that you qualify to bring a claim under the legislation. If you do this and your employer accepts that there was a dismissal, it will be for your employer to show that there were fair grounds for the dismissal. Apart from a case involving constructive dismissal, a dismissal is presumed to be unfair unless your employer can show substantial grounds to justify it.
Under the legislation you may ask your employer for a written statement of the reasons for your dismissal. Your employer should provide this within 14 days of your request.
If you are found to have been unfairly dismissed you may be placed back in your job or, more commonly, you may receive compensation for the loss of earnings caused by the dismissal.
Unfair dismissals
A dismissal is considered to be automatically unfair if the employee is dismissed for any of the following reasons:
Redundancy
Under the unfair dismissals legislation, redundancy is considered to be a fair ground for dismissal. However, although a redundancy situation exists, you may have grounds for complaint if the manner of your selection for redundancy was unfair. You may qualify to bring a claim for unfair dismissal if you consider that you were unfairly selected for redundancy or consider that a genuine redundancy situation did not exist. Unless your employer can prove there was a genuine redundancy situation and that fair procedures were followed, your dismissal may be found to be unfair. If you make a claim for unfair dismissal, you cannot also claim redundancy.
Rules
In order to qualify to bring a claim for unfair dismissal under the legislation the following requirements must be met:
Time limit
The time limit for beginning a claim for unfair dismissal is 6 months from the date of the dismissal. If there is reasonable cause you may be allowed to extend this period up to 12 months from the date of dismissal. However, this must be reasonable cause – 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 to which you are entitled 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.
Service
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:
Note: 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.
In general, the continuity of an employee’s employment is only broken by the dismissal of the employee by the employer or the termination of the employment by the employee.
Employment status
You must be an employee, working under a contract of service. The essential element of such a contract is that the relationship is one of employer/employee, as opposed to a contract for services where the relationship involves performing a service in return for payment, that is, a contractor. In the case of agency employees, for the purpose of redress under the Acts, the employer is the person or organisation for whom the employee is actually working.
The fact of dismissal
You must have been dismissed in order to bring a claim. The one exception to this is the concept of constructive dismissal where you resign but claim that your employer’s conduct towards you forced your resignation.
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.
Excluded categories
The Acts do not apply to the following:
(a) an employee who is under 16, or who has reached normal retiring age or who is not covered by the Redundancy Payments Acts because of age
(b) a person working for a close relative in a private house or farm, provided both also live in the same house or farm;
(c) a member of the Defence Forces
(d) a member of the Garda Síochána (since 4 July 2006, the Acts apply to most State employees)
(e) a person undergoing full-time training or apprenticeship
(f) an officer of education and training boards, a county or city manager and the chief executive of the Health Service Executive
(g) an employee who is employed under a fixed-term/specified-purpose contract and where the contract is in writing, is signed by both parties and contains a clause that the Acts shall not apply in relation to a dismissal consisting only of the expiration of the fixed term contract or the completion of the specified purpose.
(h) an employee who works outside the State (unless the employee is resident in the State for the duration of the contract or is domiciled in the State and the employer is resident in the State for the duration of the contract)
(i) statutory apprentices who are dismissed within 6 months after beginning apprenticeship or within one month after the completion of the apprenticeship
(j) an employee who is on probation or undergoing training at the beginning of employment, provided that the duration of probation or training is one year or less and is specified in the written contract of employment
(k) an employee who is dismissed during training for qualification or registration as a nurse or for other specified para-medical employment
Note: The exclusions from the Acts of persons referred to in points (b), (e), (i), (j) and (k) shall not apply where the dismissal results from:
The exclusion from the Acts of persons referred to in points (a) and (d) shall not apply where the dismissal results from the employee availing of the right to parental leave, force majeure leave or carer’s leave.
The exclusion from the Acts of persons referred to in points (d) and (e) shall not apply where the dismissal results from the employee making a protected disclosure.
The Unfair Dismissals Acts will not apply to a dismissal where the employee’s employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on maternity leave, adoptive leave, paternity leave or carer’s leave.
Further information
For further information please email Barry Crushell of Aperture Partners Advisory at bcrushell@aperturepartners.ie or call 01-9053503.
Please note that the material contained herein is for general information purposes only and does not constitute legal or other professional advice. Reference accurate at time of publication but subject to change.