one of the most common claims that you'll come across in the employment
relationship in Ireland in employment law is unfair dismissal this includes
constructive dismissal in this video I'm going to take a look at 15 things that
you need to know about unfair dismissal in Ireland ok the first thing that you
need to know is that the relevant legislation is the unfair dismissals Act
1977 and this was amended by the unfair dismissals Amendment Act of 1993 and
some other amendments since that but the essential starting point if you want to
find out about unfair dismissal and see what the law actually states is to go to the
statute book the Irish statute book dot i e and look at the unfair dismissals act 1977
the second thing you need to know is that an unfair dismissal arises when the
employer terminates the employment of the employee a constructive dismissal on
the other hand is where the employee terminates the employment relationship
and the employee would be doing so on the basis that the behavior of the
employer is so bad so egregious that he or she can no longer be expected to
put up with it and therefore resigns from the position to the huge and significant
difference between the two positions the unfair dismissal where the employer
dismisses the employee means that the burden of proof to show that it was a fair
dismissal rests with the employer in a constructive dismissal situation however
the burden of proof rests with the employee to prove that he or she has
acted reasonably and that the conduct of the employer has been so bad that
essentially the employer has considered the employment contract at an end and the
employee is therefore entitled to resign join the third point you need to know about
an unfair dismissal or constructive dismissal claim is that most times 90%
95% 98% of the time you must bring a claim within
six months of dismissal you bring a claim to the workplace relations
commission not to court but to the WRC that must be within the time period of
six months number four redress is possible is
reinstatement re-engagement or financial compensation
number five financial compensation is limited to actual financial loss so if
you are fired out of one job and a month later you get a new job then strictly
speaking a financial loss is one month's salary that is the gap between getting
fired and getting the new job and that is all you're entitled to according to
the legislation and that is all the WRC can award you you cannot be awarded anything
for embarrassment or pain and suffering or for rough management or for
defamatory remarks or anything like that it it cannot be dealt with in the WRC in
the workplace relations commission you're entitled to financial loss under the
legislation that is if you've been defamed or if something else has
happened to you then you may need to go someplace else for example if it's
defamation or slander or anything of that nature you really need to go to the
civil courts sixth thing an employee on probation can be dismissed without any
great protection and does not have the protection of the unfair dismissals
act so if you are on probation and if you have been fired then to all intents
and purposes you can forget about bringing a claim for unfair dismissal
unless your claim is based on a dismissal on one of the discriminatory grounds in
which case you don't need twelve months service you can bring a claim but by and
large in order to bring a claim you need 12 months service and if you're on
probation your probation period cannot exceed twelve
months therefore if you are on probation and you are fired, you really are flogging a
dead horse trying to bring a claim for unfair dismissal number seven the
position or the starting position in the law is that a dismissal is generally
seen as an unfair dismissal unless the employer can prove
otherwise so the burden of proof is on the employer to prove that it was a fair
dismissal number nine an employer is supposed to give an employee a written
statement within 28 days of starting the job of the dismissal procedure number 10
you can go to the courts and bring a claim for wrongful dismissal wrongful
dismissal is essentially a breach of contract claim but you can't go to the
WRC for an unfair dismissal claim and to the civil courts for a wrongful
dismissal claim you really must choose between one or the other going to court
is more expensive than going to the WRC if you're an employer and you're going
to dismiss on the grounds of competence or incompetence you really do
need to go through some sort of a performance improvement plan or at least
give the employee the shortcomings let them know or let her know what the
shortcomings are and give him or her sufficient time to improve only then
after a reasonable time and I would suggest six months is probably
reasonable only then can you dismiss on the grounds of incompetence but you do
need to set out number one what the shortcomings are number two the
timeframe within which they can approve and number three the required improvement
the employee should be given training and assistance to improve and to do the job
the incompetence ground or competence ground can't be used as a way just to
get rid of an employee that you don't like you do have to be fair and give
them fair procedures that brings me on to my next point number twelve
even if an employee is going to be dismissed for competence or indeed for any other
ground by and large you do need to give them fair procedures and natural justice
so you need to bring them through some sort of a procedure there is a statutory
instrument statutory instrument 146 of 2000 which sets out a basic disciplinary
procedure that should be used in the workplace and the basic Fair Play should
be used and each employee has a right a constitutional right to fair
procedure natural justice or Constitution an employee on long term
sick leave can be dismissed on the basis or on the grounds of incapacity in
other words he or she is no longer able to do the jobs they were employed to do
however this needs to be very very carefully handled from an employer's
point of view and you do need medical evidence and really do need to give them
sufficient time to recover and you do need to have sufficient medical grounds
to terminate the employment on the basis that the person is not going to be able
to return to do the job that they were entitled to or that were taken on or
contracted to do so essentially the contract is frustrated it's finished you
know through no fault of anybody's the employee is simply sitting and there or
have some elements that prevents them from doing the job that they were taken
onto the WRC or the labor court in looking at a constructive dismissal case
will apply two well known tests in deciding whether the employee was justified
in leaving the job or not 1 did they act reasonably and they will also
look at the conduct of the employer to see whether they acted reasonably and
2 the contract test was the conduct of the employer so bad that the employee
was able to reasonably deduce that the contract was no longer going to be bound
or binding on the employer so they are two tests in a constructive dismissal
case reasonableness of the parties and contract was the contract essentially
broken by the employer and was the employee essentially therefore let off
and allowed to resign and bring a claim for constructive dismissal the 15th and
final point I would make is that many many famous people have A gone bankrupt
and B been fired it's not a life-changing event for most of them
people recover people go on to great things sometimes a job isn't just for
you sometimes the employer decision for you and quite frankly as an employer and
employee may well not be just the right person for your business or your
organization or whatever but you know unfair dismissal
rather termination of employment is not a life change there shouldn't be a
life changing event it should be just a bump in the road a speed bump as it
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