CURRENT LEGAL ARTICLES

GREEN & ASSOCIATES SOLICITORS 

Key Words: unfair dismissal, dismissal claim, claim for unfair dismissal, dismissal.

To be eligible to file a claim for unfair dismissal, an employee typically needs to have at least one year of continuous employment with the employer or have been dismissed for a reason that makes the dismissal automatically unfair. Green Solicitors, a Cork-based Law Firm, provides expert employment law advice on unfair dismissal cases.

Knowing the difference between unfair, wrongful, and constructive dismissal is critical to assessing the next steps in a dismissal claim. Wrongful dismissal refers to the termination of employment in breach of the terms of the contract. Unfair dismissal is when your employer terminates the employment contract without substantial grounds or following the correct procedures. Constructive dismissal occurs when you are forced to resign due to your employer’s unreasonable behaviour.

For the Unfair Dismissals Act 1977, if your employer dismisses you from work for any of the following grounds, your termination is automatically considered to be ‘unfair’.

· Membership, or proposed Membership of a trade union or engaging in trade union activities outside of work hours or permitted hours

· Religious or political opinions

· Civil or criminal proceedings against the employer to which you are a party or witness

· Exercise of statutory rights to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or a request for a flexible working arrangement

· Age, race, colour or sexual orientation

· Discrimination on Traveller Community Membership

· Pregnancy, attendance at ante-natal classes, giving birth or breastfeeding 

· For making a protected disclosure

An employee’s dismissal may not be unfair if it results from the following:

· the capability, competence, or qualifications to perform the work assigned by the employer

· The conduct of the employee

· job redundancy

· inability to work or continue working in the position due to a legal disqualification or other restrictions imposed by law

Generally, redundancy is considered a fair reason for dismissal. However, if you believe you were unfairly selected or there was no legitimate reason for your redundancy, you can file a complaint with the Workplace Relations Commission.

To learn more about grounds for dismissal, read our overview guide on Employment Law in Ireland: Rights and Responsibilities.

You must be employed under a service contract for at least 12 consecutive months to claim unfair dismissal. You cannot claim unfair dismissal if you’re an independent contractor, an agency worker, or self-employed.

You must file your complaint within six months of the date of dismissal when your notice period ends. The time limit can be extended by six months if you have a valid reason for the delay.

The burden of proof in an unfair dismissal claim rests with the employer to show that there were substantial grounds justifying the dismissal. Generally, the release of an employee is presumed to be unfair unless the employer can bring proof that it was fair on one of the few specific, fair reasons that justify the dismissal. 

In unfair dismissal claims, compensation is meant to put you where you would have been financially if you hadn’t been dismissed – it is not intended to compensate you for emotional distress. Employees are expected to minimise any financial losses arising from dismissal by actively seeking alternative employment after their termination. If employees fail to take reasonable steps to find new work, they may not be compensated for any loss they could have avoided. However, the onus is on the employer to show that the employee did not genuinely attempt to mitigate losses. The test for proof of loss mitigation requires employees dismissed to actively spend a significant portion of their typical working day seeking alternative employment while out of work (Philip Smith v Mark Leddy (UDD1974).) In N Smith & Sons Ltd t/a Ford Smiths of Drogheda v Ragelis (UDD2332), despite the employee applying for “seventeen jobs” and having “telephone conversations with six contacts over eight months, Labor Court found these efforts fell “very far short of the obligation placed by the Act.

In an unfair dismissal case, a claimant is entitled to compensation up to 104 weeks (2 years) of their salary. The adjudication officer will determine a fair and equitable value as compensation for unfair dismissal after assessing the claimant’s actual and prospective loss of income resulting from the dismissal.

The Unfair Dismissals Act stipulates a minimum one-year continuous service threshold for filing an unfair dismissal claim. However, you may still have limited options for addressing unfair dismissal during probation under the Industrial Relations Acts. In the case of C & W O’Brien Architects v A Worker (LCR22301), the employment contract stipulated a six-month probationary period, and the employee was dismissed without any prior warnings or indications of unsatisfactory performance or conduct. The Labour Court found that an employer is not relieved of their obligation to act fairly during a probationary period and must comply with the code of practice in grievance and disciplinary procedures before dismissing an employee during their probationary period. The Court awarded the employee €60,000 in compensation and an additional €754.31 for accrued leave.

If you feel you have been unfairly dismissed, you should first try appealing the dismissal under your employer’s dismissal or disciplinary procedures. If it does not lead to a satisfactory outcome, you can make a complaint to the Workplace Relations Commission (“WRC”) within six months of the dismissal. To be eligible to file a complaint, you typically need to have at least one year of continuous service with your employer or have been dismissed for the reason that makes the dismissal automatically unfair. 

Facing unfair dismissal can be an emotionally trying experience. If you’ve been unfairly dismissed, having a team of employment law experts in your corner at this stressful time is essential. To speak to our expert unfair dismissal solicitors about your case, call us at 0214708570 0894453749 or email us at info@greensolicitors.ie.

Disclaimer: Please be advised that the information contained in this article is intended solely for informational purposes and should not be construed as legal advice. We urge you to consult with a qualified legal professional for any legal advice you may need. Remember that legal matters can be complex and require an expert’s guidance. Therefore, seeking the right direction to make informed decisions is essential. Thank you for your attention to this matter.