EMPLOYMENT LAW

If you are dismissed from work, the dismissal is automatically considered to be ‘unfair’ if you are forgiven for:

• Membership (or proposed membership) of a trade union or for engaging in trade union activities
• Religious or political opinions
• Legal proceedings against an employer where you are a party or a witness
• Race, colour, sexual orientation, age, or membership in the Traveller community
• Pregnancy, giving birth, breastfeeding, or any other matters connected with pregnancy or childbirth (such as attending antenatal classes)
• Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’s leave, parent’s leave, parental leave or force majeure leave
• Unfair selection for redundancy
• Making a protected disclosure (that is, where you raise concerns about possible wrongdoing at work) under the Protected Disclosures Act 2014

Unfair dismissal happens where:

• Your employer ends your contract of employment with or without notice.
• You end your contract of employment, with or without notice, due to your employer's conduct. This is known as constructive dismissal.

Your dismissal from work is not ‘unfair’ if it results from:

• Your capability, competence or qualifications for the job
• Your conduct (behaviour)
• You being unable to work (or continue to work) in the position you held without breaking the law (for example, if your job involves driving and you are then legally disqualified from driving)
• Your redundancy (read more about redundancy below)

The Workplace Relations Commission handles claims for unfair dismissal. You can bring a claim for unfair dismissal if you meet the following requirements:

Time Limits

It would help if you complained about an unfair dismissal within six months of the discharge. Under the Unfair Dismissals Acts, the ‘date of your dismissal’ is the date your notice expires.The 6-month time limit may be extended for six months, but only if you have a ‘reasonable cause for the delay.

Length of Service

Usually, you must have at least 12 months of continuous service with your employer before you can bring a claim for unfair dismissal.

Exceptions to the ‘length of service’ rule

If you have worked for your employer for less than 12 months, you may still bring a claim for unfair dismissal if you were dismissed for:

• Trade union membership or activity
• Pregnancy, giving birth, breastfeeding or any matters connected with pregnancy or childbirth.
• Availing of rights to maternity leave, adoptive leave, paternity leave, parental leave, carer’s leave, parent's leave, force majeure leave, or the national minimum wage
• Making a protected disclosure

If you have less than one year’s service and your employer has not followed fair procedures when dismissing you, you may be able to claim under Section 20(1) of the Industrial Relations Act 1969. However, any recommendation from the Court is not legally binding on the employer.

Dismissal based on discrimination

Dismissal based on any of the following nine grounds for discrimination is illegal:

• Gender
• Civil status
• Family status
• Age
• Disability
• Religious belief
• Race
• Sexual orientation
• Membership in the Traveller community

For example, if you have been employed for less than a year, you may not be able to bring a claim under the unfair dismissal legislation. But, you may be able to make a complaint of ‘discriminatory dismissal’. Read about handling discrimination disputes.

Employment status

To be considered an ‘employee’, you must work for an employer under a ‘contract of service’. This is different from a ‘contract for services, where a contractor or self-employed worker per favour service in return for payment. Read more about understanding your employment status.If you work for an agency, you can generally bring a claim under the Unfair Dismissals Act against the employer who hired you from the agency. Read about agency employees.

The fact of dismissal

You must have been dismissed to bring an unfair dismissal claim too. The only exception is in cases of constructive dismissal, where you claim your employer’s actions towards you forced you to resign from the job.If your employer disputes that a dismissal occurred, you must proveconfirmit did. Once you prove the release happened, your claim for unfair dismissal can continue to the WRC.

You cannot bring a claim for unfair dismissal if you are:(a) An employee under 16, or an employee who has reached the average retirement age of 65, or who is not covered by the Redundancy Payments Acts because of your age(b) Working for a close relative in a private house or farm, where you both also live in the same place or farm(c) A member of the Defence Forces(d) A member of the Garda Síochána(e) Taking part in full-time training or an apprenticeship(f) An officer of education and training boards, a county or city manager, or the chief executive of the HSE(g) Employed under a fixed-term/specified-purpose contract – this contract will be in writing, signed by you and your employer, and will state the Unfair Dismissal Acts do not apply if you are only dismissed because the fixed-term contract has ended(h) An employee who works outside the State (unless, while the contract is in force, you are resident or domiciled in the State or are domiciled in the State and your employer is resident in the State)(i) A statutory apprentice who is dismissed within six months after beginning your apprenticeship or within one month of completing the apprenticeship(j) An employee on probation or undergoing training for up to a year at the beginning of employment, where the duration of your probation or training is specified in the written contract of employment(k) An employee who is dismissed while training to qualify or register as a nurse or other specified para-medical employment

Exceptions

If points (b), (e), (i), (j) or (k) apply to you, you can still claim for unfair dismissal if the dismissal results from:

• 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, parent's leave, force majeure leave or carer’s leave

If points (a) or (d) apply to you, you can still claim unfair dismissal if you are dismissed for taking parental leave, force majeure leave or carer’s leave.If points (d) or (e) apply to you, you can still claim for ir dismissal if you are dismissed for making a protected disclosure.

Note: You cannot claim unfair dismissal if your employer told you in writing when you started work that your employment will end when another employee returns from maternity, adoptive, paternity, or carer’s leave.

If you meet certain conditions (see ‘Can I bring a claim for unfair dismissal?’ above), you can bring a claim against your employer.If your employer accepts they dismissed you, they must show that there were fair grounds for the dismissal. A dismissal is automatically presumed unfair unless your employer can show substantial grounds (reasons) to justify it. This does not apply in cases of constructive dismissal.Ask your employer for a written statement of the reasons for your dismissal. Your employer should give you the information within 14 days of your request. Once you get this written statement, you can bring your complaint to the Workplace Relations Commission (WRC).

Bring a claim for unfair dismissal using the WRC’s online complaint form.You must make your complaint within six months of the dismissal (that is, six months from the date your notice ends). The time limit may be extended for six months, but only if you have a ‘reasonable cause for the delay.Read more about how to make a complaint, including details of the WRC adjudication process.

At the WRC, an adjudication officer (also called an adjudicator) will arrange a hearing to decide whether your dismissal was fair.The adjudicator can make witnesses attend the hearing and give evidence in your case.If the adjudicator finds you have been unfairly dismissed, you may either:

• Get your job back
• Get compensation for the loss of earnings caused by the dismissal – see ‘If your claim is successful’ below.

If you are unhappy with the adjudicator’s decision, you can appeal it to the Labour Court.

If your claim is successful

If your claim for unfair dismissal is successful, the WRC (or the Labour Court) may award you either reinstatement, re-engagement or compensation.

Reinstatement

Reinstatement means you are treated as if you had never been dismissed.If you are reinstated, you have a right to repay for earnings lost between the dismissal date and the hearing date. You also have a right to any favourable changes in terms of employment during that period, such as a pay rise.

Re-engagement

Re-engagement means you get your job back from a particular date, such as the date of the WRC decision. This means you do not have a right to compensation for any loss of earnings.Re-engagement is used when the adjudicator feels the employee contributed to the dismissal, even though the actual was unfair.

Compensation

Compensation is where you get paid for your financial loss (you do not get your job back). It is the most common outcome in unfair dismissal cases.Generally, the maximum compensation is two years and two pay. But, if you were dismissed for making a protected disclosure, the maximum is five years’ pay. You cannot claim compensation for injury to your feelings or stress caused by the dismissal.When awarding compensation, the WRC takes the following factors into account:

Your current loss of earnings

This is your loss of earnings from the date of the dismissal to the hearing of your claim. Any money you earn during this period is deducted from the compensation amount, and any payment you instead of notice (instead of information) when you were dismissed.By law, you must try to lessen your losses during the period from your dismissal to the hearing. You do this by being available for work and seeking alternative employment.If you have no actual loss because, for example, you took up other employment immediately after your dismissal, you have a right to get a token compensation of 4 weeks’ pay.

Your future loss of earnings

Your future loss of earnings is issued based on how long it’s likely to take you to get a new job.

Your pension loss (if any)

This calculates how the unfair dismissal has affected your pension entitlements.

Your loss of statutory protection

This calculation deals with any protection you may have lost under the unfair dismissals, redundancy and minimum notice legislation.

Any contributory conduct

This calculation takes intconsidersuct (behaviour) by you that contributed to the dismissal, even though it was an unfair dismissal.The ‘degree of contribution’ (the level at which you contributed to the dismissal) is stated as a percentage, and the same rate reduces your overall compensation.

Dismissal from fixed-term or specified-purpose contracts

A fixed-term contract is a contract of a specific length, agreed by you and your employer. A specified-purpose contract is also of limited duration and ends when the job is completed (but neither you nor your employer knows from the outset how long it will take).

Dismissal at the end of a contract

Dismissal at the end of a fixed-term or specified-purpose contract may be considered ‘unfair’ under the Unfair Dismissals Acts. However, the employer can prevent this by meetingthree3 conditions:

1. The contract must be in writing and set out the specific duration of the fixed-term contract (or, in the case of a specified-purpagreementract, the object of the contract)
2. The contract must be signed by both the employee and the employee.r
3. The contract must contain a specific clause stating that the expiry of the agreement will not make it liable to a claim under the Unfair Dismissals Acts.

If these three conditions are not met, you can apply for unfair dismissal (as long as you meet the usual eligibility criteria – see ‘Can I bring a claim for unfair dismissal?’ above).

If you had successive fixed-term contracts

Employees cannot be employed on a series of fixed-term contracts indefinitely.You cannot be kept on successive fixed-term contracts for more than four years. This does not include a single fixed-term contract. For example, you can get a 5-year fixed-term contract, but you cannot give fivefive5 one-year fixed-term contracts.If your employer wants you to continue in the job, they must employ you under an open-ended contract (also called a contract of indefinite duration).The only exception is where your employer has objective grounds justifying the renewal of your fixed-term contract. The employer must prove that a further renewal is appropriate and necessary to achieve a legitimate objective.The Unfair Dismissal Act have particular provisions to ensure that successive temporary contracts are not used to avoid the employee being protected from the unfair dismissal legislation. Where a fixed-term or specified-purpose contract ends, and you are re-employed within three months, you are deemed to have continuous service.So, even if the employer excludes the unfdismissalsals legislation in the manner described above, an adjudicator at the Workplace Relations Commission (WRC) will consider whether the use of such contracts was wholly or partly to avoid you having the protection of the unfair dismissals legislation.If the WRC finds this was the case, the contracts were not separated by more than three months, and the job was similar, your issue can be dealt with as if you were in continuous employment. The employer must then justify your dismissal in these usual.

More information

The law on unfair dismissal is set out in the Unfair Dismissals Acts 1977-2015. The law does not protect you from dismissal release gives you a way to appeal your dismissal and question its fairnessGet information about unfair dismissals from dg@greensolicitors.ie of work.

• Rights of fixed-term workers Employees on fixed-term contracts generally have the same employment rights as employees on open-ended contracts.
• Contract of employment The law specifies that contracts of employment must contain cespecificetails, and your employer must give you your terms of work in writing.
• Victimisation at work Some employment legislation protects you from being victimised at work.