In general, the Unfair Dismissals Acts, 1977 - 2016, provide 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.
The purpose of the Acts is to protect employees from being unfairly dismissed from their employment by laying down criteria by which dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unfair.
To be an employee, you must be working for an employer under a ‘contract of service’. This is an agreement between two parties where one party (the employee) provides a service for the other party (the employer) for a monetary reward also known as a contract of employment.
Persons engaged through employment agencies are covered by the scope of the legislation. For the purpose of the Unfair Dismissals Act the party (end user) hiring the individual from the employment agency is deemed to be the employer.
What is an Unfair Dismissal?
The Acts provide for a number of grounds under which a dismissal may be considered unfair:
- 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
- The employee having made a protected disclosure
- Legal proceedings against an employer where an employee is 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, carer's leave, parental or force majeure leave
- Unfair selection for redundancy
The dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following
- The capability, competence or qualifications of the employee for performing work of the kind which s/he was employed by the employer to do
- The conduct of the employee
- The redundancy of the employee
- The employee being unable to work or continue to work in the position which s/he held without contravention (by employee or employer) of a duty or restriction imposed by or under any statute or instrument made under statute
Redundancy is considered a fair reason for dismissal. However, if you consider you were unfairly selected or that there was no genuine need for your redundancy you may refer a complaint to the WRC for unfair dismissal.
Who does the Act apply to?
The Act apply to employees over the age of 16 years with at least 12 months continuous service.
The Act does not apply to the following persons:
- Close relatives of the employer who are living in the same household
- Members of An Garda Síochána and the Defence Forces
- Statutory apprentices dismissed within six months after the commencement of the apprenticeship or in the month following the end of their apprenticeship (s.4 Unfair Dismissals Act,1977).
- An employee who has reached normal retiring age for employees of the same employer in similar employment.
- A person employed by or under the State who was dismissed by the Government
- A chief executive of a local authority (Section 144 Local Government Reform Act 2014)
- The Director General of the Health Service Executive (Section 17 Health Act 2004)
- The chief executive officer of the Child and Family Agency (Section 28 Child and Family Agency Act 2013)
The Act shall not apply to a dismissal where the employment was under a contract of employment for a fixed term or specified purpose and the dismissal occurred at the expiry of the term or the cesser of the purpose without its being renewed under the same contract. This is provided that contract of employment specifies that the Unfair Dismissals Act does not apply to the expiry of the contract.
The Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when s/he is on probation or undergoing training once the contract in writing states that the duration of the probation or training is one year or less.
Length of Service
You must have at least twelve months continuous service to claim for unfair dismissal. Continuous service is broken if the employer dismisses you or if you have previously terminated your employment
Cases where one year's continuous service does not apply:
The requirement of one year’s continuous service does not apply where the dismissal results from:
- an employee’s pregnancy, giving birth or breastfeeding or any matters connected therewith
- the exercise or proposed exercise by an employee of a right under the Maternity Protection Act, 1994 & 2004
- the exercise or contemplated exercise by an employee of the rights to adoptive leave, or additional adoptive leave under the Adoptive Leave Act 1995 & 2005
- the exercise or proposed exercise by the employee of the right to parental leave, parent's leave or force majeure leave under and in accordance with the Parental Leave Act, 1998, 2006 & 2019, and the Parent's Leave and Benefit Act 2019
- an employee’s entitlements, future entitlements, exercise or proposed exercise of rights under the National Minimum Wage Act 2000
- an employee’s trade union membership or activities
- the exercise or proposed exercise by the employee of the right to carer’s leave under and in accordance with the Carer’s Leave Act, 2001
- an employee employed under a statutory apprenticeship and the dismissal takes place after 6 months of the start date of the apprenticeship, but not in the month following the end of the apprenticeship.
If you have less than twelve months continuous service and you believe you have been unfairly dismissed by your employer, you may take a claim under Section 20(1) of the Industrial Relations Act 1969. It is important to note that the Court makes a recommendation, this is not legally binding on the employer.
Under Section 98 (a) of the Employment Equality Act 1998, it is an offence if an employee is dismissed for exercising their rights in relation to discrimination, they have experienced under the nine grounds of discrimination
- Gender
- Civil status
- Family status
- Age
- Disability
- Religious belief
- Race
- Sexual orientation
- Membership of the Traveller community
Constructive Dismissal
Constructive dismissal arises where you terminate your contract of employment, with or without prior notice, due to the conduct of your employer. Your employer's conduct, however, must have been such that it would have been reasonable for you to terminate your contract without giving notice.
In a constructive dismissal claim, the employee must demonstrate that they are justified in their decision and that they had no option but to terminate their contract.
Advance Notice to Employee of Dismissals Procedures
Employment related issues concerning the conduct or performance of employees should be identified and addressed fairly, in accordance with an established or formal disciplinary procedure.
In order to ensure full recognition of these procedures, where they exist, an employer must give written notice of any agreements or dismissal procedures that exist or of any procedures that have been established by custom and practice, to every employee when they commence employment.
These requirements are satisfied if, for example, this information is incorporated in a staff handbook or similar publication given to each employee.
It is in an employer’s own interest to have a clear and comprehensive set of procedures governing dismissals and to ensure that employees are fully conversant with the procedures.
A sample Terms of Employment template is available assist employers to ensure that details of their procedures governing dismissal can be notified to employees.
The WRC Code of practice on Grievance and Disciplinary Procedures describes best practice when dealing with grievances in the workplace. The purpose of a grievance procedure is to facilitate the resolution of workplace disputes fairly and as quickly as possible.
Claim for Unfair Dismissals and Time Limits
Making a Complaint
Where an employee considers that their employer or former employer has contravened a provision of the above Acts, they may refer a complaint to the Workplace Relations Commission for resolution. Complaints may be submitted using the Online Workplace Relations Complaint Form, available on the How to Make a Complaint/Refer a Dispute page on this website. Complaints will be referred to an Adjudication Officer for Hearing.
Written notice of a complaint, which must contain certain prescribed particulars, must be received by the WRC within 6 months of the date of dismissal. This time limit for submitting a complaint may be extended to 12 months, where reasonable circumstances have prevented the referral of a complaint within the normal time limit of 6 months
Appeals arising from a WRC Adjudication Officer's decision, may be appealed to the Labour Court.
Mediation
The parties may be asked to engage in mediation as an alternative to Adjudication. Mediation is provided by trained officers of the WRC as part of its early resolution service. Mediation can take place over the telephone or in person and is a confidential and voluntary process. It is often a very efficient and inexpensive means of resolving complaints at the earliest stage.
If a mediated solution is achieved, the agreement is put in writing and signed by both parties. Where this occurs, the dispute is resolved, and no further action is taken by the WRC.
If the dispute is not resolved through mediation, then the complaint will proceed to an Adjudication hearing.
Redress
Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever the adjudication officer or the Labour Court considers appropriate having regard for all the circumstances.
- Re-instatement by the employer of the employee in the position which was held immediately before dismissal
- Re-engagement by the employer of the employee in the position which was held immediately before dismissal or in a different position which would be reasonably suitable
- Compensation
If an employee has incurred any financial loss attributable to the dismissal, payment by the employer of such compensation will not exceed 104 weeks remuneration in respect of the employment from which the employee was dismissed. If the employee has incurred no financial loss, payment to the employee by the employer of such compensation if any will not exceed 4 weeks remuneration.
You may view or download the Unfair Dismissals Act 1977 here.
You may view of download the Employment Equality Act