Dismissal

Unfair Dismissals Acts, 1977-2001

The Unfair Dismissals Acts are intended to provide employees with legal protection from being unfairly dismissed from their jobs, to lay down criteria by which dismissals are to be judged unfair, and to establish an adjudication system to provide redress for any employee who is found to be unfairly dismissed.

In general, the Acts apply to any person working under a contract of employment or apprenticeship; employed through an employment agency. For those employed through an agency, the third party (hirer or user) is deemed to be the employer for the purpose of the Acts. The Acts do not apply to employees under 16 years of age at the time of their dismissal or who have reached 66 years of age or the normal retirement age for the employment.

Minimum Qualifying Service
Employees should have a minimum of 12 months' continuous service. Continuous service is determined by the rules set out in the Minimum Notice and Terms of Employment Acts, 1973-2001. Continuous service does not necessarily imply an unbroken period: where an employee's contract is broken or he/she is hired on a series of contracts, service may be regarded as continuous provided that there is no more than 26 weeks between these periods of service.

The requirement to have one year's continuous service does not apply where dismissal results from:

  • the employee's pregnancy, giving birth, breastfeeding or any matters connected with them;
  • the exercise or proposed exercise of any right under the Maternity Protection Act, 1994;
  • the exercise or contemplated exercise of any right to Adoptive Leave or Additional Adoptive Leave under the Adoptive Leave Act, 1995;
  • the exercise of rights to Parental Leave or Force Majeure Leave under the Parental Leave Act, 1998;
  • the employee's entitlement or rights under the National Minimum Wage Act, 2000;
  • the employee's trade union membership or activities; or
  • the exercise of rights under the Carers' Leave Act, 2001.

Exclusions
The legislation does not apply to:

  • employees who have reached the normal retirement age of the employment or who are not covered under the Redundancy Payments Acts, 1967-2001;
  • those working for a close relative in a private house or farm if they both live on the same premises;
  • members of the Gardaí or Defence Forces;
  • persons undergoing full-time training or apprenticeships in FÁS premises;
  • State employees – other than certain industrial categories;
  • officers of health boards (other than temporary officers) and Vocational Education Committees.

Those working for a close relative or in full-time FÁS training or apprenticeships are covered by the legislation if the dismissal results from the:

  • employee's pregnancy, giving birth, breastfeeding or connected matters;
  • exercise of rights under the Maternity Protection Act, 1994; Adoptive Leave Act, 1995; Parental Leave Act, 1998; or Carers' Leave Act, 2001.

Similarly, Gardaí are covered if their dismissal results from their attempt to exercise rights under the Parental Leave Act, 1998 or Carers' Leave Act, 2001.

Burden of Proof
In general, the law provides that every dismissal shall be deemed unfair unless an employer can show substantial grounds justifying the dismissal.

This general principle does not apply if the dismissal is for trade union membership or activities. Nor does the general principle apply to cases where employees are claiming constructive dismissal.

Justifying Dismissal
To justify a dismissal an employer must show that it resulted from one or more of the following causes or 'other substantial grounds':

  • capability, competence or qualifications of the employee;
  • employee's conduct;
  • redundancy; or
  • the fact that continuation of the employment would contravene another legal requirement.

'Other substantial grounds' may include - even partially - the previous record or behaviour of the employee. So it is important that employees tell their Union representatives everything about their past records when preparing a case for unfair dismissal. Capability can often hinge on the acceptable or unacceptable levels of absence of an employee. Conduct within the workplace may be defined by reference to the grievance handling and disciplinary procedure and any resulting case histories.

Continued employment that might contravene another legal requirement might include a driver losing their driving licence or an employee's work permit expiring or being revoked.

Unfair Dismissal
Dismissals will be deemed unfair if they resulted from:

  • the employee's trade union membership or activities either outside working hours or at those times during working hours when permitted by the employer;
  • the employee's religious or political opinions;
  • the employee's race, colour or sexual orientation;
  • the employee's age;
  • the employee's membership of the Traveller Community;
  • the employee's legal proceedings against an employer where an employee is a party or witness;
  • the employee's unfair selection for redundancy;
  • the employee's pregnancy, giving birth, breastfeeding or connected matters;
  • the employee's exercise of rights under the Maternity Protection Act, 1994;
  • the employee's exercise of rights under the Adoptive Leave Act, 1995;
  • the employee's exercise of rights under the Parental Leave Act, 1998;
  • the employee's exercise of rights under the National Minimum Wage Act, 2001; or
  • the employee's exercise of rights under the Carers' Leave Act, 2001.

Constructive Dismissal

A constructive dismissal occurs when an employee's conditions of work are made so difficult that he/she feels obliged to resign. The legislation says that a constructive dismissal occurs when the employee terminates his/her contract, with or without prior notice, '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'.

The burden of proof in a constructive dismissal claim is on the employee. An employee claiming constructive dismissal will generally have to show that they followed workplace grievance procedures, in so far as they were able, or, if such procedures did not exist, that they drew the attention of management to the source of their complaint and gave opportunity for management to respond. The employee should document all evidence of such action, if possible.

Constructive Dismissal resulting from Bullying or Harassment
Employers have a duty of care to their employees. If bullying is tolerated or ignored, clearly this duty of care has been broken. The harassed employee should attempt to use whatever procedures exist in the job – whether standard grievance handling procedures or special anti-bullying and harassment procedures – before seeking constructive dismissal. The onus of proof will be on the employee. So it is vital that proof is gathered before any resignation triggers a constructive dismissal case.

Written Notice of Reason for Dismissal
If asked in writing by the employee, an employer must within fourteen (14) days give the reasons for the dismissal.
In hearing a claim, however, account may be taken of any other substantial grounds which may have justified a dismissal.
It is not an offence for an employer not to provide written reason for the employee's dismissal. If an employee has sought such explanation, written evidence of that and the absence of any employer reply should be made available at any subsequent hearing,

An employer should also give written notice of any agreement on dismissal procedures which exist – whether established through agreement or by custom and practice – to every employee within 28 days of starting the job. This information can be contained in a staff handbook, a company-trade union agreement or a notice to each employee. It is in the employer's interests to have a clear and comprehensive set of procedures governing dismissals and to ensure that employees are familiar with them. There is, in any case, for all citizens, a right, drawn down from the Constitution, to 'fair procedure'. In any dismissal case there are two considerations for a tribunal hearing the evidence of the case -
were there substantial grounds warranting the dismissal?;
was fair procedure followed?

What Happens if there are no Dismissal Procedures?
The Industrial Relations Act, 1990 (Code Of Practice On Grievance & Disciplinary Procedures) (Declaration) Order, 2000, SI 146 – a code drawn up by the Labour Relations Commission – sets out standards which the Rights Commissioner and the EAT will expect to serve as minimum entitlements for any workplace. Ignorance of the Code Of Practice is no defence for an employer. Remember that a dismissal may be adjudged to be unfair because of a failure by an employer to follow fair procedures.

Time Limits on Bringing a Claim
An employee who feels they have been unfairly dismissed may bring a claim in writing on the prescribed form to the Rights Commissioner or Employment Appeals Tribunal (EAT). If either party objects to the Rights Commissioner, the case goes directly to the EAT. Cases must be brought within six (6) months of the date of the alleged dismissal. Only in exceptional circumstances, this time limit may be extended to twelve (12) months. It should be noted that time limit extensions are not commonly granted.

What Redress is Available under the Act?
Either party may appeal a Rights Commissioner Recommendation to the EAT within forty-two (42) days of that Decision being communicated to the parties. The Rights Commissioner or EAT may find the dismissal to be fair or unfair. If they find the employee has been unfairly dismissed, they may award either:

  • re-instatement in their old job from the date of the dismissal;
  • re-engagement in their old job or in a suitable alternative job on conditions which the Rights Commissioner and/or EAT consider reasonable;
  • financial compensation of up to two years' pay;
  • where no financial loss has been sustained by the employee, financial compensation may be awarded up to a maximum of four (4) weeks' remuneration. Where financial compensation is awarded, the precise amount may depend on such matters as where the responsibility for the dismissal lay, the measures taken by the employee to reduce financial loss; and the degree to which negotiated dismissal procedures were followed, if they existed.

In calculating financial loss for the purpose of compensation, payments to an employee under the social welfare and income tax codes will be disregarded. Where ownership of a business may have transferred since the dismissal, an award may be made against the new owner.

Do Employees Always Get the Remedy They Seek?
No. Depending on the nature of the case, the Rights Commissioner or EAT may decide, for example, that because they believe an employee has contributed significantly to their own dismissal, that, even though the dismissal is still seen as being unfair, the remedy of reinstatement that the employee is seeking is inappropriate. In this instance they may award a sum of compensation rather than re-instatement. The small scale of many workplaces means that if the Rights Commissioner or EAT consider that there has been an irreparable breakdown in the trust between employer and employee, there may be little point in attempting to place the employee back into the employment.
Current figures indicate that only about 5% of cases that are deemed to be unfair dismissal result in either re-instatement or re-engagement of the employee concerned.

Can Redress Be Sought at Common Law?
Yes. An employee may take an action against their employer for wrongful dismissal. Such an action would automatically debar them from proceeding under these Acts. The right to take an action in common law persists until the Rights Commissioner has made a Recommendation or an EAT hearing has commenced. Conversely, an employee retains the right to proceed under these Acts until an action in a civil court has commenced.

Can a Dismissal Be Fought Under Any Other Law?
Yes. If an employee has been dismissed within the meaning of the Employment Equality Act, 1998, the case may go either to the Equality Tribunal for Mediation or the Labour Court. If this has happened they forfeit their right to take the case under the Unfair Dismissals Acts. A case cannot be brought under the Industrial Relations Acts, 1946-2001 and the Unfair Dismissals Acts simultaneously or by switching from one system of redress to the other. The choice as to which route may be preferred still lays with the dismissed employee and their trade union.

Claims to a Rights Commissioner
A Rights Commissioner, having received a written claim from an employee, will notify the employer and, if necessary, arrange a hearing between the parties. Having heard the evidence of both parties the Rights Commissioner will issue a Recommendation. A Rights Commissioner's investigation can be objected to by either party - in which case the matter is referred straight to the Employment Appeals Tribunal (EAT).

Rights Commissioner and EAT Hearings
Rights Commissioner hearings are held in private and are informal. EAT hearings are public, other than in special circumstances.
In the EAT, the claim is made or refuted by hearing all evidence presented on oath through the examination-in-chief and cross-examination of witnesses. This can be off-putting for employees who have little experience or confidence in such a setting and who may normally be reliant on their Trade Union Representative making a case on their behalf. The EAT is supportive of those that appear before it and its primary concern is that 'the case be heard'. An Explanatory Booklet On The Employment Appeals Tribunal – available from the EAT or Department of Enterprise, Trade and Employment – covers all aspects of an EAT hearing and explains what procedures there are and what is expected of the parties.
If an employee is appearing before the EAT - either as a claimant or witness - your Union official will offer advice as to the practices and procedures of the EAT.

What Happens if the Employer will not Implement either a Rights Commissioner Recommendation or EAT Determination?
If an employer does not implement a Rights Commissioner Recommendation within 42 days, the matter may be referred to the EAT. The EAT is empowered to issue a Determination without rehearing the case and may uphold, reverse or vary the Rights Commissioner Recommendation.
If an employer ignores an EAT Determination within 42 days of its issue, either the employee, their trade union or the Minister may seek an Order from the Circuit Court compelling the employer to implement the Determination.
Failure to appear before the EAT where a subpoena is served or failure to produce documentation is an offence liable, on summary prosecution, to a fine of up to €1,269.74.

Appeals to Courts of Law
Either party may appeal an EAT Determination, in whole or in part, to the Circuit Court within 6 weeks of the Determination being issued. The Circuit Court completely rehears the case. The matter may be further appealed within ten days of a Circuit Court Decision to the High Court. A High Court Decision may be appealed to the Supreme Court only on a point of law. Either party may appeal an EAT Determination to the High Court on a point of law.

Can a Case Be Settled 'Outside' the Rights Commissioner or EAT?
Yes. Many cases are settled in the weeks before an arranged Rights Commissioner or EAT hearing, on the steps outside such hearings or even during such hearings. If both parties agree to such an arrangement that is quite acceptable.
It often makes sense to notify such agreements with the deciding tribunal so that an enforcement mechanism is still available to the employee concerned in the event of non conformance.

Special Provisions of the Acts for Different Situations
The Acts contain special provisions for different categories of employee or special situations

Fixed Term/Specific Purpose Contracts - the expiry of a fixed term contract without renewal or completion of the specific purpose contract means that these Acts will not apply provided such contracts were in writing, were signed by both parties, and contained a clause that these Acts would not apply.

Second/Subsequent Fixed Term Specific Contracts - if there is not greater than three months between such contracts, a Rights Commissioner or EAT may regard them as continuous, especially if breaks in contract were considered to be for the purpose of avoiding liabilities under the Acts.

Probationary/Training Contracts - the Acts do not apply at the beginning of employment provided the contract was in writing and the duration of the probation is less than one year and is specified in the contract. Exclusion does not, however, apply if the dismissal resulted from pregnancy, giving birth, breastfeeding or connected matters; or the exercising of rights under the Maternity Protection Act, 1994, Adoptive Leave Act, 1995, Parental Leave Act, 1998 or Carer's Leave Act, 2001. The Acts also do not apply to dismissals during training for qualification or registration as nurse or other paramedic, subject to the same exclusions.

Statutory Apprenticeships - the Acts do not apply to those on statutory apprenticeships within the first six (6) months of the commencement of the apprenticeship and one (1) month following its completion. Again the exclusion does not apply if the dismissal results from pregnancy, giving birth, breastfeeding or connected matters or for the exercise of rights under the Maternity Protection Act, 1994, Adoptive Leave Act, 1995, Parental Leave Act, 1998 or Carer's Leave Act, 2001.

Lock Outs and Strikes - a lock-out is regarded as a dismissal and will be deemed unfair if, after the lock-out ceases, the employee is not re-instated or re-engaged and other employees are. Dismissal after a strike is unfair if other employees were either not dismissed or, having been dismissed, were subsequently re-instated or re-engaged.
Unfair Selection For Redundancy - a dismissal by way of redundancy may be unfair if selection were made for one of the reasons regarded as unfair under the Acts or if it was contrary to existing redundancy selection procedures in the workplace and there were no special reasons for departing from that procedure. If an employee succeeds in the claim for unfair selection, any payments made to them under the Redundancy Payments Acts, 1967-2001 must be refunded.

Pregnancy Dismissals - dismissal of an employee is unfair if it results from her pregnancy, giving birth, breastfeeding or connected matters and she may bring a claim for unfair dismissal even if she does not have a year's continuous service.

Exercise of Rights under the Maternity Protection Act, 1994 - dismissal of an employee is unfair if it results from her exercising her rights under the Maternity Protection Act, 1994. These rights include her right to take Maternity Leave, Additional Maternity Leave, antenatal and post-natal care leave, and the right to return to work after completion of the notification provisions. She does not have to have one year's continuous service.

Replacement of an Employee on Leave of Absence under the Maternity Protection Act, 1994 - the Acts do not apply to an employee who has been informed in writing at the commencement of her/his employment that their contract will terminate when the employee on Maternity Leave returns and their employment is purely for the purpose of replacing that employee.

Exercise of Rights under the Adoptive Leave Act, 1995 - dismissal of an employee for exercising their rights under the Adoptive Leave Act, 1995 is unfair. Such employees do not have to have one year's continuous employment.

Replacement of an Employee on Adoptive Leave - the Acts do not apply to an employee who has been informed in writing at the start of their contract that the contract will terminate when the employee on Adoptive Leave whom they are replacing returns to work and that the sole purpose of their employment was to replace such a person.

Exercise of Rights under the Parental Leave Act, 1998 - the dismissal of an employee will be deemed unfair if it results from exercising their rights under the Parental Leave Act, 1998, including both Parental Leave and Force Majeure Leave. The requirement for the employee to have one year's continuous service does not apply in such cases.

Working Abroad - the Acts do not apply to employees who ordinarily work outside the State unless s/he was resident or domiciled in the State for the duration of the contract or the employer was resident in the State or had its principal place of business in the State.

Dismissals due to Trade Union Membership or Activities - in such cases an employee does not have to have one year's continuous service, can be over the normal retirement age, engaged on probation or training, or be a statutory apprentice. The employee must, however, prove their case rather than - as in all other cases other than constructive dismissal cases - the employer showing justification for the dismissal.

Deceased Employees - if an employee dies at any time following their dismissal or constructive dismissal, their Representative can still pursue a case for unfair dismissal under these Acts.

Illegal Contracts - in the case of a contract tainted by illegality - due to tax or social welfare fraud - the employee is still entitled to seek redress on the understanding, however, that the Revenue Commissioners and Minister for Social Welfare shall be notified of the matter.

Entitlements under the National Minimum Wage Act, 2000 - a dismissal of an employee seeking their rights under the National Minimum Wage Act, 2000 shall be deemed unfair and the requirement for one year's continuous service shall not apply.

Exercise of Rights under the Carers' Leave Act, 2001 - the dismissal of an employee for seeking their rights under the Carers' Leave Act, 2001 shall be deemed unfair and the requirement for one year's continuous service shall not apply.

Replacement of an Employee on Carers' Leave under the Carers' Leave Act, 2001- the Acts do not apply to an employee employed solely to cover another employee's absence on Carers' Leave.