A GUIDE TO THE LAW IN RELATION TO UNFAIR DISMISSALS & CONSTRUCTIVE DISMISSALS

Any aggrieved employee may make a complaint to the Workplace Relations Commission (WRC) where he or she believes there is a contravention of employment and/or equality legislation or has an individual grievance under industrial relations legislation. The central legislation governing unfair dismissal claims are the Unfair Dismissal Acts 1977-2015.

Unfair dismissal arises when the employer terminates the employee’s employment for a reason that is not allowable under law. Constructive dismissal arises when the employee resigns as a direct result of the conduct of the employer.

UNFAIR DISMISSAL LEGISLATION:

In order to qualify under the Unfair Dismissal legislation, an employee must have 12 month’s continuous service in a full-time position with his/her employer. An employee who is on probation, or who has less than 12 months’ employment is excluded from the rights afforded by the unfair dismissal legislation, although there are some limited exceptions, for example a dismissal arising from a discriminatory ground. A dismissal is routinely considered to be unfair if an employee is dismissed for any of the following reasons:

Membership or proposed membership of a trade union or engaging in trade union activities, whether within permitted times during work or outside of working hours;

Religious or political opinions;

Legal proceedings against an employer where you are a party or a witness;

Race, colour, sexual orientation, age or membership of the Traveller community;

Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy; or birth

Availing of rights under legislation to maternity leave, adoptive leave, paternity leave, carer’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.

It is important to bear in mind that in any unfair dismissal case the burden of proof is on the employer, in other words, the employer must prove that the dismissal of the employee was fair and reasonable in all of the circumstances and that ‘due process’ was followed. Section 6 (7) of the Unfair Dismissal Act 1977 states that the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

In a constructive dismissal case the burden of proving one’s case is placed on the employee; this means the employee must prove he/she left the employment due to the conduct of the employer which he/she could no longer be expected to endure.

In determining whether the dismissal is fair or unfair there must be regard to:

(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal, and

(B) The extent, if any, of the compliance or failure to comply by the employer in relation to the to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

The employer’s own disciplinary procedures will be reviewed as it may be more extensive than the procedures outlined in the Code of Practice. It is therefore extremely important to consult the employment handbook for both employer’s and employee’s in relation to the disciplinary procedures within an organisation. If an employer does not follow it’s own procedures, it is facing an uphill task in terms of defending an Unfair Dismissal action.

Due Process:

An employer must give an employee a written statement of the procedure to be used in dismissing him within 28 days of commencement of employment.

If an employer is going to dismiss on the grounds of competence he should give the employee clear notice of the shortcomings, and sufficient time to improve. A performance improvement plan is recommended.

Where an employee is to be dismissed he/she should be afforded fair procedures and natural justice prior to termination, unless the situation if one of gross misconduct which may justify a summary dismissal.

Gross misconduct dismissal are acts that destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue, such as theft of company property, bullying of staff, for example.

Time for Lodging a Claim with the WRC:

An aggrieved party must bring his/her claim to the WRC (Workplace Relations Commission) within 6 months of the dismissal date, unless one can show reasonable cause for the delay in submitting an application in which case they may be allowed 12 months by the WRC in limited circumstances. Accordingly it is important to seek legal advice as soon as possible once you believe you have been wrongfully dismissed or resigned as a result of your employer’s conduct.

Legal Remedies Available to parties bringing an Unfair Dismissal Action:

Redress possible for the employee, if he/she wins, can be reinstatement, re-engagement, financial compensation.

Reinstatement requires the employer to treat the employee as if they had never been dismissed. Re-engagement requires an employer to re-engage a claimant in employment that is comparable to the job from which they were dismissed, or in other suitable employment.

Financial compensation is financial loss incurred by the employee and attributable to the dismissal as is just and equitable having regard to all the circumstances, subject to a maximum of 104 weeks remuneration. Receipt of social welfare payments by the employee is disregarded in calculating financial loss.

In the event of dissatisfaction regarding a decision of the WRC, the Complainant has the option of appealing the decision to the Labour Court to determine the case.

About the author: Kevin Sherry is an Associate Solicitor in the DGOD litigation department and can be contacted at sherryk@dgod.ie