Unfair dismissal

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Challenging an Unfair
Dismissal
An Employee’s Guide
By Thomas G Myles
Employment Rights Advice
info@employmentrightsadvice.ieinfo@employmentrightsadvice.ie

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© 2017. Copyright Era Legal & Corporate Limited, info@employmentrightsadvice.ie
This presentation does not constitute legal advice. You should seek professional advice before acting or refraining from taking any action
based on these contents.
Contents
 Who is covered?
 Burden of Proof
 Written Notice of Dismissal
 Notice of Dismissal Procedures
 Justification
 Time Limits
 Preparing the Claim
 Redress
 Hearing the Claim
 Appeal & Enforcing the Award
 Further info

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Who is covered?
In order to make a claim for unfair dismissal in Ireland you must meet the
following requirements:
✔ Are you an employee? The relationship must be one of
employer/employee.
✔ Have you been in continuous employment with your employer for at least
twelve months ?
✔ Were you dismissed? Your employer may claim that you resigned. If you
believe that you were forced to resign, you may be able to claim
constructive dismissal.
✔ Have you avoided an excluded category?

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Who is covered – continued – Constructive Dismissal
 What is constructive dismissal?
The statutory definition
Section 1 of the Unfair Dismissals Act defines constructive dismissal as:
“the termination by the employee of his contract of employment with his
employer, whether prior notice of the termination was or was not given to
the employer, in circumstances in which, because of the conduct of the
employer, the employee was or would have been entitled, or it was or
would have been reasonable for the employee, to terminate the contract of
employment without giving prior notice of the termination to the
employer...”

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Who is covered – continued- Constructive Dismissal
 What proof is needed?
In unfair dismissal cases the burden is on the employer to prove that the
dismissal was fair. In a claim for constructive dismissal the burden of
proof moves to the employee making the claim. That means that you have
to prove that the employer's behaviour was unreasonable. This can require
proof that you took every step available to you in exploring grievance
resolution, prior to resigning. You must show that it was impossible for
you in all reasonable circumstances to continue in your employment. It is
for this reason that resignation should be a last resort.

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Who is covered – continued- Constructive Dismissal
Tests for Constructive Dismissal
If your dismissal passes either of these tests then you have a good chance
of succeeding in your action.
 The contract test
This examines whether or not the resignation arose as a result of a breach
of contract by the employer.
 The reasonableness test.
This examines the question was the behaviour of the employer so
unreasonable that the employee was left with no option but to resign.

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Who is covered – continued- Excluded Categories
 The unfair dismissal acts do not apply to employees in any of these
categories :
 Age. If you are under 16, or excluded from the Redundancy Acts because of
age, or have reached the normal retirement age covered in your contract.
 Do you work for a close relative in a private house or farm where you both
live? If yes then you are excluded.
 A member of the Defence Forces
 A member of the Garda Siochana
 Are you receiving full-time training or apprenticeship? If so, this is an
excluded category.

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categories :(Continued)
 A county or city manager, the chief executive of the Health Service
Executive, an officer of education and training boards.
 Employed on a written,fixed term contract, signed by all parties with a
clause excluding the Unfair dismissals acts
 If you work outside the state, you will be excluded unlessyou were resident
in the state for the period of the contract or are domiciled in the state and
the employer was resident in the state for the period of the contract.
 Statutory apprentice, dismissed within the first six months of the
apprenticeship or one month after completing the apprenticeship.

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categories :(Continued)
 Are you on probation or training at the start of employment of one year or
less and written in the completed contract of employment ? If yes, then
you are excluded
 Employees in training for qualification as a nurse or other specified para-
medical employment are excluded.
 If you are excluded because you are in one of the above categories you may
be able to bring a claim for unfair dismissal if you are dismissed in
contravention of anti- victimization , Equality anti- discrimination, or
similar legislation.

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Unfair Dismissal – Burden of Proof
 As a rule the Unfair Dismissal Acts provide a presumption that every
dismissal is unfair unless the employer can show substantial grounds
justifying the dismissal. You still have to prove the facts of your case. The
burden then moves to the employer to justify the dismissal.
 Dismissals which are in breach of Equality Discrimination are
automatically unfair and cannot be justified.

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Written Notice of Dismissal
 Gather information regarding the reasons which your employer gave for
your dismissal .
 Write to your employer requesting the reasons why you were dismissed,
in writing.
 Your employer is obliged in law to provide this information in writing,
within 14 days of your request.

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Unfair Dismissal – Notice of Dismissal Procedures
 Did your employer follow the dismissal procedures in place?
 If there are no procedures in place, there should be. The Workplace
Relations Commission's Code of Practice: Grievance and Disciplinary
Procedures states that employers should have written grievance and
disciplinary procedures.
 How much notice did you get? The Minimum Notice and Terms of
Employment Acts 1973 – 2005 set out your minimum entitlements to
notice.

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Unfair Dismissal - Justification
A Dismissal may be held to be fair if the employer can justify it under the
following grounds:
The grounds for dismissing an employee in Ireland which are considered fair
are the following:
➢ Capability
➢ Competence
➢ Qualifications
➢ Conduct
➢ Redundancy
➢ Contravening the law
➢ Other substantial grounds

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Unfair Dismissal – Time Limits

You must make your complaint with the Employment Appeals Tribunal
within six months of the date of dismissal.
 The date of dismissal does not refer to the date that you left your
employer’s premises.
 It refers to the date that you stopped being employed by them.
 To calculate this you must include the notice period to which you are
entitled. Under section 7 of the Minimum Notice and Terms of
Employment Act 1973, if you accept payment in lieu of notice, then the
date of termination of your employment is the date on which notice (if it
had been given) would have expired.
 To be safe make your claim well within the six month period.

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Unfair Dismissal – Preparing the Claim
 Gather the evidence
 Write it down. Make a note of everything that happened. Everything that
was said. Cover the who, what, why, when , where and how.
 Memory fades. You will need these notes to refresh your memory.
 Keep all documents. This includes your contract, any correspondence,
written notice of dismissal etc.

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Unfair Dismissal - Redress
 There are three options open to you, reinstatement, re-engagement or
compensation.
 Reinstatement. Circumstances at work may have changed significantly,
which may rule out reinstatement. The role may have been eliminated or
carried out by someone with another position within the company.
 Re-engagement involves being employed in a position of equal status and
pay.
 Compensation is the most usual remedy. You can receive up to two years
pay if the dismissal is held to be unfair.
There is a duty on you to mitigate your losses. You must seek alternative
employment.

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Unfair Dismissal – Hearing the Claim
 The adjudication officer can ask questions of each party and of any
witnesses attending.
 He or she will give each party the opportunity to give evidence, to call
witnesses, to question the other party and any witnesses, to respond and to
address legal points.
 The Workplace Relations Act specifically provides that the proceedings
will be heard “otherwise than in public”. Therefore, the adjudication
officer cannot allow members of the general public, the press, or observers
to attend hearings.
 After the completion of the investigation, a written decision will issue
within 28 working days or as soon as is practicable.

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Unfair Dismissal – Appeal & Enforcing the Award
 Either party may appeal the decision in writing to the Labour Court
within 42 days of the date of the decision (decisions under the Equal
Status Act must be appealed to the Circuit Court within 42 days of the date
of the decision).
 If no appeal is lodged after this period, the decision is legally binding and
may be enforced through the District Court.s

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Unfair Dismissal – Further information
Please contact us if you require any further information or help with your
unfair dismissal claim. We have over thirty years experience in employment
law in Ireland.
Our contact details are:
Web; www.employmentrightsadvice.ie
Email; info@employmentrightsadvice.ie
Telephone Office; 047 76378, Mobile; 086 2629233
Address;3 Canal Street, Monaghan, Co. Monaghan.H18 H732
Thank you for watching this presentation We hope you found it useful. Thomas G. Myles.

Unfair dismissal

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