Unfair Dismissal
Unfair Dismissal Solicitors Dublin
In general, a dismissal from employment is considered to be an unfair dismissal unless having regard to all the circumstances, there were substantial grounds justifying the dismissal.
The unfair Dismissal Acts 1977 (as amended) provide that a dismissal is considered unfair when an employee is dismissed for any of the following reasons:
- membership or proposed membership of a trade union or engaging in trade union activities, where the times at which he/she engages in such activities are outsides his/her hours of work or are times during his/her hours of work in which he/she are permitted pursuant to their contract of employment between their employer to so engage;
- religious or political opinions of the employee;
- civil or criminal proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party in which the employee was or is likely to become a witness;
- the employee’s race, colour, sexual orientation, age or membership of the Traveller community;
- the employee’s pregnancy, attendance at ante natal classes, giving birth or breastfeeding, or any matters connected with pregnancy or birth;
- the exercise or proposed exercise by the employee of the right to maternity leave, adoptive leave, carer’s leave, parental or force majeure leave;
- the employee is unfairly selected for redundancy and/or the redundancy is not genuine;
- having made a protected disclosure under the Protected Disclosures Act of 2014 (as amended).
The
Unfair Dismissals Acts also provide that the dismissal of an employee will not be deemed to be an unfair dismissal if it results wholly or mainly from one of the following:
- the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do;
- the conduct of the employee
- the redundancy of the employee, and
- the employee being unable to work or continue to work in the position which he held without contravention (by him or his employer) of a duty or restriction imposed by or under any statute/legislation
Determining
In determining whether a dismissal is unfair, the Workplace Relations Commission (below) or the Labour Court can take into account the reasonableness or otherwise of the conduct of the employer in relation to the dismissal and the extent to which, if any, the employer failed to provide a statement of the reasons for dismissal or with the provisions of any code of practice.
By way of general overview, where an employee feels that they have been unfairly dismissed, they must have one year’s continuous service to bring a claim under the Unfair Dismissals Act (with some exceptions such as dismissal on the grounds of pregnancy). In addition, an employee must ensure that a claim is lodged within 6 months of the date of dismissal to the Workplace Relations Commission. This can be extended to 12 months if there was reasonable cause for failure to lodge in the initial time period however it is always preferable to lodge as soon as possible after dismissal.
Unfair Dismissal Remedies
Amongst the remedies available for unfair dismissal before the Workplace Relations Commission include compensation, reinstatement and re-engagement.
Compensation is the most sought after remedy. Here an employee can be awarded up to 2 year’s compensation which is limited to financial loss. An employee is also under an obligation to mitigate their losses and actively seek employment and have copies of all efforts to obtain work at the hearing or prior thereto if requested by the employer or their representative.
The remedy of reinstatement arises where an employee is treated as if they were never dismissed from employment. They are also entitled to be paid any loss of earnings back to the date of dismissal.
Where re-engagement is the remedy awarded, the employee returns to work at a particular date in the same or similar role on the same or different terms and conditions but is not entitled to any loss of earnings from the date of dismissal.
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