A situation in which an employee is dismissed from their job and, having regard for all the circumstances, without substantial grounds justifying the dismissal.
What is a dismissal?
A dismissal arises where an employee’s contract of employment with their employer terminates. This can occur either with or without notice being given by the employer / employee.
A dismissal may also arise on the expiration of a fixed term or specified purpose contract.
What is a fair dismissal?
A dismissal is not unfair if it results wholly or mainly from an employee’s:
- Conduct
- Capacity, competence or qualifications
- Inability to work in the position without breaking the law
- Redundancy, or
- Some other substantial reason
What is an unfair dismissal?
A dismissal is deemed unfair unless, having regard to the circumstances, there are substantial grounds justifying the dismissal. A dismissal is automatically unfair if it results wholly or mainly from an employee’s:
- Association with a trade union
- Religious / political opinions
- Raising of a protected disclosure
- Legal proceedings against an employer where the employee is a party or a witness
- Race or colour
- Sexual orientation
- Age
- Membership of the Traveller community
- Pregnancy, giving birth or breastfeeding or related matters
- Availing of maternity, adoptive, parental, paternity, force majeure, domestic violence, medical care or carer’s leave
- Unfair selection for redundancy
When is an employee eligible to bring an unfair dismissal claim?
An employee must generally:
- Work under an employment contract, a ‘contract of service’
- Be over 16 years of age
- Have at least 12 months’ continuous service, unless the dismissal is automatically unfair for a reason specified at paragraph 3 above
- Not be an ‘excluded’ employee, examples include An Garda Síochána, the defence forces, those undertaking full-time training/apprenticeships
How can an employee bring a claim to the Workplace Relations Commission (WRC)?
Complaints must be brought to the WRC within six months of the date of dismissal. This timeline is extendable to 12 months where there is ‘reasonable cause’ for delay.
What happens where there is a finding of unfair dismissal?
If the WRC finds that an employee has been unfairly dismissed, it can order the following:
- Reinstatement, i.e. they employee is treated as if they were not dismissed
- Re-engagement, i.e. the employee gets their job back from a particular date / the date of the WRC’s decision
- Compensation of up to a maximum of two years’ remuneration. Awards are limited to financial loss. An employee has a duty to mitigate their losses by finding alternative employment as soon as possible.
An employee can appeal a decision of the WRC to the Labour Court within 42 days after the date of the WRC’s decision.
If you would like to discuss concerns regarding dismissals, please contact a member of our Employment & Benefits team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.