Claims Ireland

Unfair Dismissal

FAIR AND UNFAIR DISMISSAL

Direct Dismissals

1. The law in relation to unfair dismissal is concerned with the following questions:

• what is the reason for dismissal?
• is the reason a potentially fair reason?
• is the decision to dismiss reasonable?

2. If an employer directly dismisses an employee for a potentially justifiable reason, the procedure adopted is fair, equitable and reasonable and the decision to dismiss is the decision of an employer acting reasonably, then there should be a good prospect of success if the matter proceeds to a Rights Commissioner or a tribunal.

Indirect Dismissals

1. An employee's ambiguous words, such as "I'm going" or "I'm sick of this job" must not be seized on by an employer as an act of resignation. Such a 'resignation' would not preclude the employee from presenting a claim for unfair dismissal to a Rights Commissioner or a Tribunal and the background to the words being said could turn the resignation into a dismissal.

2. An employer must never threaten an employee with "resign or be dismissed", as legally such action will be viewed as dismissal. Even if the employer obtained a resignation letter from the employee, a Rights Commissioner or a Tribunal will hold that the employer terminated the contract.

3. If an immature employee resigns or an employee resigns in the heat of the moment and again the employer seizes on the words of resignation as a reason to end the contract, this too would be regarded as a dismissal by a Rights Commissioner or a Tribunal. In the case of an immature employee, the help of a friend or relative should be obtained by the employer to ensure that the employee understands the implications of resigning. In the case of a 'heat of the moment' resignation, the employer should allow a cooling-off period and then ensure that it is still the employee's wish to resign.

4. If, because of the employer's conduct, an employee ends the contract (with or without notice), this is potentially a "constructive dismissal" on the part of the employer. In order to prove a claim for constructive dismissal, the employee will need to show that the employer fundamentally breached a significant term of the contract of employment, or indicated an intention not to be bound by an essential term of the contract.

5. Examples of such breaches include:

• changing an employee's duties or normal working place;
• reducing an employee's pay/salary;
• undermining or changing an employee's authority and/or status;
• changing any of the employees terms and conditions (whether express or implied) without obtaining he employee's prior agreement to such changes;
• unfair use of the disciplinary procedure; and
• actions which lead to a breakdown in the mutual trust and confidence between theemployer and employee which is implicit in the contract between the parties, such as not taking an employee's grievance seriously

6. In order to succeed in a constructive dismissal claim the employee must show that the contract terminated because of the employer's action(s).

Qualifying Employees

1. In general, the legislation applies to any person working under a contract of employment or apprenticeship, including those employed through an employment agency. In the case of those employed through an employment agency, the party hiring the individual from the agency is deemed to be the employer for the purposes of unfair dismissal legislation.

2. Every applicant must meet certain criteria before they can bring any action against an employer before a Rights Commissioner or a Tribunal. Certain types of employment are generally excluded from the right to bring proceedings for unfair dismissal, including members of the Defence Forces and the Gardai and those working for a close relative whilst living in the same house or farm. However, these exclusions may not apply where the reason for the dismissal is one of certain specified automatically unfair reasons (see below).

3. There are certain general exclusions for bringing unfair dismissal claims such as having less than the required period of a year's continuous service (see the Employment rights section of this Document) or being under the age of 16 or over the normal retiring age. However, these general exclusions may not apply where an employee is dismissed for certain specified automatically unfair reasons (see below). In addition, if a Rights Commissioner or Tribunal considers that the employment of a person on a series of two or more contracts, between which there was not more than a 26 week break, was for the purpose of avoidance of liability by the employer under the legislation, the various contracts may be added together in calculating the employee's continuous service.

Excluded Contracts

1. Employees working under a contract for a fixed term or for a specific purpose are excluded from the right to claim unfair dismissal at the expiry of the contract provided that the contract is in writing, is signed by both parties and contains a statement specifically excluding the statutory provisions in respect of unfair dismissal.

2. The early or late termination of a fixed term contract will make the exclusion void, as will the early termination of a specific purpose contract or the provision of other work during the contract.

3. If a series of two or more fixed-term contracts, between which there was no more than a three month break, is considered to have existed for the purpose of avoidance by the employer of liability under the legislation, the contracts will be added together in calculating the continuous service of the employee.