Unfair Dismissal

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 to whether there has been an unfair dismissal. Cases are now heard by an adjudication officer in the Workplace Relations Commission and the Labour Court on appeal.  The system operates separately from the courts.

A claim for unfair dismissal is an alternative to a claim for wrongful damages/breach of contract.  In the case of the vast majority of employees, their employment is terminable on relatively short notice. Accordingly, a wrongful dismissal claim is unlikely to yield anything more than the salary due during the notice period.

There are separate rights to minimum notice periods on termination of employment, which can also be asserted by way of complaint to the WRC.


Overview of Unfair Dismissal II

A significant feature of the right to make an unfair dismissal claim is that the burden of proof lies with the employer.  Generally, a person taking a claim must prove all facts required for his case, on the balance of probabilities.  In contrast, the unfair dismissal legislation provides that once there has been a dismissal, it is presumed unfair, unless the employer can positively justify it, on one or more potentially fair grounds.

In order to qualify for unfair dismissals rights, the claimant must be an employee. He must be employed under a contract or service.  See the separate section on the distinction between employees and independent contractors.  Usually, he must be employed for at least one continuous year.  Not all employees qualify for unfair dismissal rights. The unfair dismissal claim itself must be made within six months of dismissal.

The Unfair Dismissals Act gives an employee who has been dismissed, a right within 14 days of a request, to a written statement of the grounds for the dismissal.


Fair / Unfair Grounds

The presumption is that the dismissal is unfair. Therefore, the onus is on the employer to prove that the dismissal is both substantively and procedurally fair.

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 the ground applies. There be actual substantive and procedural fairness.

The potentially fair grounds for dismissal are

  • capability, competence, or qualifications of the employee for the job;
  • conduct of the employee;
  • redundancy
  • other substantial grounds

Automatically Unfair Grounds

There are certain grounds for dismissal which are deemed automatically unfair. They are as follows.

  • trade union membership or activities;
  • religious or political opinions;
  • involvement in civil or criminal proceedings against the employer;
  • the exercise of parental leave rights;
  • age, race, colour, sexual orientation;
  • membership with the travelling community;
  • pregnancy and certain post-birth circumstances;
  • the exercise of maternity protection rights.

Even in the above cases, there may be, in all the circumstances, separate substantial grounds which justify the dismissal.

Other legislation concerning employment rights deems dismissal based on the exercise of those rights, to be unfair.  For example, health, safety and welfare legislation deems a dismissal to be unfair if it has resulted wholly or mainly from the assertion or exercise of such rights.


Fairness

The WRC and the Labour Court review the fairness of the employer’s decision.  It does not purport to substitute its own decision. There is a margin within which it will respect the employer’s opinion or prerogative.  If a dismissal is an option which a reasonable employer may take, then the WRC will not substitute its own decision, even it disagrees with the employer’s decision.

There are two key aspects to unfair dismissal rights. The decision to dismiss must be both procedurally fair, and it must be substantively fair.  The potentially fair reasons for dismissal must be shown to exist.  The employer must generally follow fair procedures to establish that the fair reasons exist. He must give the employee the opportunity to make representations have his or her perspective considered in determining the existence of the allegedly fair ground.

The employer cannot simply make up a reason retrospectively. Generally, the relevant ground must be disclosed. There may be several reasons which cumulatively justify a dismissal, in which event, each should be each disclosed.

Although the required grounds for dismissal must exist at the time of dismissal, the EAT may look at other circumstances which existed at the time, if relevant.  Events that occur before and after dismissal may be used to reinforce the relevant grounds. There may be, for example, similar acts of misconduct. The EAT may take other grounds into account, which having regard to whether the circumstances, are substantial and would have justified the dismissal.

The grounds of dismissal must have an objective basis.  A subjective reason with no reasonable objective basis is not sufficient.  The employer may not simply assert his belief in relation to a basis of dismissal, without an objective basis.  In effect, fairness turns on the reasonableness of the employer’s actions and circumstances.


Procedural Fairness I

The Employment Appeals Tribunal, now the WRC adjudication officer, emphasises procedural fairness.  An employer must have both a fair or justifiable reason for dismissal and must afford the employee fair procedures in deciding whether the dismissal is fair.  The WRC is likely to have regard to the extent of compliance with the employer’s procedure for unfair dismissal.

The employer’s procedure for grievance and dismissal must be given to the employee within 14 days of commencement of employment.  Regard may also be had to published codes of practice on grievance and dismissal procedures.

What is required by way of procedural fairness, will depend on the nature of the ground of dismissal relied on.  Where alleged misconduct is at issue, the employer must investigate it in a fair and reasonable manner.  The employer’s response should reasonable in the circumstances.  It should be proportionate to the seriousness of the misconduct complained of.


Procedural Fairness II

The employee should be given the evidence on which the complaint is made. He must be given the opportunity to explain and rebut the alleged misconduct.  He must generally be allowed the opportunity to confront those giving evidence of the misconduct concerned. The employee may be entitled to be represented by a workmate or union representative in presenting his case.

The fact that the procedure is flawed will not necessarily make the decision unfair.  If there are substantial reasons which merit the dismissal, it may be upheld as fair, notwithstanding the absence of fair procedures.  However, the employer must be able to justify the failure to comply with fair procedures. He must show that he has acted reasonably in dismissing the employee.

Gross misconduct may justify summary dismissal (on the spot). This may occur where some very serious misconduct occurs in open and undeniable circumstances, which fatally undermines the relationship of trust and confident with the employee. However, even if the gross misconduct is flagrant and self-evident, it is highly desirable that fair procedures are followed.


Published Procedures

The Code of Practice on Grievance and Disciplinary matters was made under the Industrial Relations Act.  As with other codes made under that Act, it is admissible as proof of good practice in the area concerned. It provides a model procedure in relation to the investigation of conduct and complaints. An Employer’s Handbook may provide its own procedures.

An employer is obliged within 28 days of commencement of employment to give notice in writing to the employee setting out the procedures which the employer will use for the purpose of dismissing the employee.  Alterations must also be notified.

Less extensive procedures may be applicable to a person on probation.  The employer policy should specify applicable provisions. A reduced and more modest disciplinary procedure may be appropriate.

The employer should be consistent and reasonable in its approach to disciplinary and dismissal matters.  The employee should know what is required of him. Where a rule is not strictly enforced, then the employer should give fair warning, if a stricter line is to be taken later.


Warnings

Where there has been misconduct or poor performance, there might be a verbal warning. It or a later infringement may be recorded in the employee’s files.  If the matter recurs within a certain period or at all, the employee may be given a written warning. Later recurrences may attract a sanction.

Upon issue of a warning, the employee may be informed that if there another similar incident or matter within a period, a second warning and ultimately, more severe sanctions will follow. A further step may involve a suspension with or without pay.  The employee may be warned that if the matter recurs, dismissal may follow.Procedures of this nature may be appropriate for both misconduct and poor performance.

The warnings should be recorded and placed in the employee’s file.  They must be reasonable by their terms. They must not be made for extraneous purposes, unconnected to the ostensible purpose.


Escalation

Disciplinary procedures typically involve levels of escalation, where the misconduct or performance issue is repeated or is found to be more serious. In the absence of gross misconduct, warnings are a necessary part of the disciplinary process. Their absence may make a dismissal unfair, even if it is otherwise reasonable for the employer to dismiss.

The giving of warnings and an opportunity for the employee to remedy the matters complained of, may make an otherwise unfair dismissal, fair.  This is usually appropriate where the grounds are based on conduct or competence.

A single serious incident of misconduct may justify dismissal, and in some cases, instant dismissal.  However, less serious incidents and behaviour will require a warning or warnings and the opportunity to correct the position.  What is appropriate, will depend on the nature of the behaviour in question.


Investigation

Suspension may be appropriate during the investigation, where this is neccesary.  In this case, the suspension is not a sanction and it should be on full pay. Suspension may impact on the employee’s good name, so should not be undertaken, unless the circumstances require it

In the case of gross misconduct, the procedure may involve immediate suspension and investigation, generally on pay.   It is precautionary in nature.  Another response such as transfer may be more appropriate if suspension is not necessary.

The employer must ascertain the facts and the circumstance, prior to taking disciplinary action. The extent of this investigation will depend on the circumstances.  If the misconduct is clear, such as where it happens in open circumstances seen by many, less extensive investigations may suffice.

It will nearly always be appropriate to consider whether there are extenuating circumstances.  If the position is less clear and depends on indirect or circumstantial evidence, a more extensive investigation is required.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 20

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009  Ch.14 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.21

Dismissal Law in Ireland  Redmond 2007

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Employment Law Contracts (Book & CD-ROM)        Beauchamps, Solicitors          2011

Acts

Unfair Dismissals Act 1977 (10/1977)

Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),

Unfair Dismissals (Amendment) Act 1993 (22/1993)

Protection of Employees (Part-Time Work) Act 2001 (45/2001

Civil Service Regulation (Amendment) Act 2005 (18/2005) (Part 6)

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007)

Industrial Relations (Amendment) Act 2015 (27/2015), s. 39

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Principles of Irish Employment Law         Daly & Doherty   2010

Termination & Redundancy, What is the law?  Hayes, Barry & O’Mara 2005

Termination of Employment Statutes (IEL)       Kerr  2016

Termination of Employment: Practical Guide for Employers        Purdy         2011

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016