Dismissal Dismissal means the termination of the employment contract, whether or not a proper notice was given. A person is generally dismissed where he is unequivocally told that his employment is at an end or the circumstances make this abundantly clear that this so. An employee’s repudiation of the contract is likely to be deemed a self-dismissal in highly exceptional […]
Overview of Unfair Dismissal The Unfair Dismissals Act 1977 introduced a statutory right not to be unfairly dismissed. The right is not enforced by the courts and does not form part of the employment contract as such. The Act created a separate right to complain to either the Rights Commissioners Service or the Employment Appeals Tribunal, for a determination as […]
Misconduct Conduct, or more correctly misconduct, is a potentially fair ground for dismissal. Conduct may relate to a single incident or to a series of incidents or circumstances over time. As in other areas, the bona fide opinion of the employer will generally be respected by the WRC, provided that fair and proper procedures have been followed. It is not […]
Capability or competence The absence of competence, qualification or capability are potentially fair grounds for dismissal. The WRC does not second guess the employer in determining whether the employee lacks the requisite competence, qualification or capability. If a reasonable employer would reach this conclusion, and the employer honestly believes it, this will generally suffice for a fair dismissal, subject to […]
Potentially Fair Grounds for Dismissal There are a number of potentially fair grounds for dismissal. It is not sufficient that the employer labels one of the ground as applicable. The application of the ground in the circumstances must be real and substantial. In addition, the employee must have been afforded fair procedure in relation to the investigation and finding that […]
Remedies for Unfair Dismissal At common law, the remedies available for wrongful dismissal are very limited. The majority of employees may have their employment contract terminated by the minimum notice period. This has the effect that even where there has been a breach of contract, the level of compensation available will be minimal. The Unfair Dismissals Acts creates its own […]
Overview A “wrongful” dismissal refers to the termination of an employment contract, in breach of its terms. Wrongful dismissal claims are taken in the Civil Courts, in common with other breaches of contract claims. In the case of the vast majority of employees, their employment contract may be terminated by relatively short notice. Under contract law, the employer may generally […]
Constructive Dismissal Under general contract law, the innocent party is entitled to terminate a contract where there is a fundamental breach by the other party, “going to the root” of the contract. One instance of a fundamental breach is where one party communicates to the other, that he does not intend to be bound by its key terms. The innocent […]
Pre-trial Injunctions An Injunction may be granted at an early stage in proceedings to preserve the status quo until the full hearing / trial. A one-sided or so-called ex-parte application may be made without notice to the other side. They are granted only where exceptional circumstances necessitate a pre-emptive one-sided application. More commonly a pre-trial application for an injunction is […]
Damages Principles The key principle of compensation is that the claimant should be put into the position in which he would have been, but for the breach, in so far as money can so do. This is limited by the principle of causation and the principle that loss must be such that it was or is deemed to have been, […]
Termination by Notice There is a strong presumption that an employment contract may be terminated by either employer or employee, by giving notice to terminate. This will be so, even if the contract appears to provide for perpetual employment. In the absence of a specific clause in the contract, reasonable notice only is required to terminate the contract. Although it […]
Nature of Redundancy If a particular job or role is redundant, the employer is entitled to dismiss the employee who fills that position. Provided that this is the true reason for dismissal, it is deemed not to be an unfair dismissal. The employee may have an entitlement to a redundancy payment if he or she has more than two continuous […]