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An unfair dismissal may occur under certain circumstances where an employer terminates your contract of employment, with or without notice or in the case of Constructive Dismissal, you terminate your contract of employment, with or without notice, due to the conduct of your employer. This is known as constructive dismissal. If you are looking for unfair dismissal solicitors Dublin or nationwide, feel free to contact us.
If you are dismissed from your employment, you may, under certain conditions, bring a claim for unfair dismissal against your employer. While 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.
If you are found to have been unfairly dismissed your employer may be ordered to reinstate you. More commonly however an award will be ordered against your former employer.
Under the Unfair Dismissals Acts 1977–2015 circumstances in which unfair dismissal can occur are where:
Your employer terminates your contract of employment, with or without notice or
You terminate your contract of employment, with or without notice, due to the conduct of your employer. This is known as constructive dismissal
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 - see 'Rules' below. 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.
A 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, paternity leave, carer's leave, parental or force majeure leave
- Unfair selection for redundancy
- Making a protected disclosure under the Protected Disclosures Act 2014
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 – see ‘How to apply’ below. 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.
In order to qualify to bring a claim for unfair dismissal under the legislation the following requirements must be met:
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.
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 Paternity Leave and Benefit Act 2016 the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer's Leave Act 2001
Making a protected disclosure under the Protected Disclosures Act 2014
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 - see 'How to apply' below.
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.
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.
The Acts do not apply to the following:
- 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
- a person working for a close relative in a private house or farm, provided both also live in the same house or farm;
- a member of the Defence Forces
- a member of the Garda Síochána (since 4 July 2006, the Acts apply to most State employees)
- a person undergoing full-time training or apprenticeship
- an officer of education and training boards, a county or city manager and the chief executive of the Health Service Executive
- 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. You can find out detailed information about fixed-term/specified-purpose contracts and dismissal in 'Further information' below.
- 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)
- statutory apprentices who are dismissed within 6 months after beginning apprenticeship or within one month after the completion of the apprenticeship
- 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
- 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 (ii), (v), (ix), (x) and (xi) shall not apply where the dismissal results from:
- The employee's pregnancy, giving birth or breastfeeding
- Availing of rights under the Maternity Protection Acts 1994 and 2004
- Availing of rights to adoptive leave or additional adoptive leave, paternity leave, parental leave, force majeure leave or carer's leave
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.
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, for example, pay rises. This remedy is rarely used.
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. Often this remedy is used where it is felt that the employee contributed to the dismissal, even though the actual dismissal was unfair. Again, however, this remedy is rarely used.
This is the most common remedy. It is essential to note that compensation is only awarded in respect of financial loss. Generally, the maximum compensation is 2 years’ pay. If you were dismissed for making a protected disclosure, the maximum is 5 years’ pay. You cannot 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. Any money earned by you during this period will be deducted, as will any payment in lieu of notice received by you when you were dismissed. You are also 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 a token 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.
- Pension loss - a calculation that will try to assess what impact the unfair dismissal has had on your pension entitlements.
- Loss of statutory protection - a calculation dealing with the point that you will have lost protection under the unfair dismissals, redundancy and minimum notice legislation.
- 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.
Fixed-term or specified-purpose contracts and dismissal
A fixed-term contract is a contract of a specific length where the duration of the contract is known to both parties from the outset. A specified-purpose contract is also of a limited duration, but the parties do not know the length of the contract from the outset. It will be envisaged that it is of limited duration to end when the specified purpose of the contract is completed.
When an employee is dismissed at the end of a fixed-term or specified-purpose contract the unfair dismissals legislation applies as normal unless the employer has availed of the provision to exclude the operation of the legislation. The 3 conditions to be met in order to bring this exclusion into play are:
The contract must be in writing and must set out the specific duration of the fixed-term contract or, in the case of a specified-purpose contract, the object of the contract.
The contract must be signed by both the employee and the employer
The contract must contain a specific clause stating that the Unfair Dismissals Acts will not apply to the expiry of the term of the contract
If these conditions are not met then you may have a claim for unfair dismissal despite the fact that you are employed under a fixed-term or specified-purpose contract, subject to fulfilling the normal requirements as to length of service, etc.
Under the Protection Of Employees (Fixed-Term Work) Act 2003, if an employee is required to enter into a number of such fixed-term or specified-purpose contracts there are two possible situations as follows:
Employees on fixed-term contracts which commenced prior to the passing of the Act: Once such an employee completes or has completed 3 years' continuous employment (any or all of the 3 years' service may have occurred prior to the passing of the Act) the employer may renew the contract for a fixed term on one occasion only and that renewal may be for a period of no longer than one year
Employees on a fixed-term employment contract which commenced after the passing of the Act: Where such an employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts, the aggregate duration of those contracts may not exceed 4 years.
However, the above-mentioned rules do not apply where there are objective grounds justifying the renewal of a contract of employment for a fixed term only.
Where a renewal of a fixed-term contract does not comply with the above requirements and cannot be objectively justified, the contract is treated as an open-ended contract.
The Unfair Dismissal Acts contain a provision aimed at ensuring that successive temporary contracts are not used in order to avoid that legislation. Where a fixed-term or specified-purpose contract expires and the individual is re-employed within 3 months, the individual is deemed to have continuous service.
Therefore, even where an employer excludes the unfair dismissals legislation in the manner described above, an adjudicator will consider whether the use of such contracts was wholly or partly to avoid the employee having the protection of the unfair dismissals legislation. If it is considered that this was the case and the contracts were not separated by more than 3 months and the job was at least similar, then the case can be dealt with as if there was continuous employment and the employer will be required to justify the dismissal in the normal manner.
If you feel you may have suffered an unfair dismissal or if you have an employment law query; contact us to arrange a consultation.
Plain English explanation of you employment rights and unfair dismissal are available here.
If you wish to make a claim for unfair dismissal you should do so within 6 months of the date of dismissal. This time limit may be extended to 12 months if there was "reasonable cause" for the delay. If you think you have been unfairly dismissed, you should contact a legal professional as soon as possible.
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