Fair grounds for dismissal

Information

If you are dismissed from your employment in Ireland you may, under certain conditions, bring a claim for unfair dismissal against your employer. Apart from a case involving constructive dismissal a dismissal is presumed to be unfair unless your employer can show substantial grounds to justify it.

So if you qualify to bring a claim and there was a dismissal, your employer has to prove that the dismissal was a fair one, that is, that there were fair grounds for the dismissal and that fair procedures were followed.

If you are dismissed from your job you are entitled to a statutory minimum period of notice if you have worked at least 13 weeks for your employer. Your written contract of employment may provide for a longer period of notice.

Under the unfair dismissals legislation you may ask your employer for a written statement of the reasons for your dismissal.  Your employer should provide this within 14 days of your request.

Rules

In order to justify the dismissal your employer:

• Must show that your dismissal was connected with one or more of the potentially fair grounds set out in the legislation
• Must show that fair procedures were followed and must have acted fairly
• Will have to disprove any allegation by you that your case involves any of the automatically unfair reasons for dismissal

Fair grounds for dismissal

Your employer could give one or more of the following reasons for your dismissal:

Capability

This includes issues such as lateness, absenteeism and persistent absence through illness or injury, either short-term or long-term.

If lateness or absenteeism is at issue, your employer will be expected to have documentary proof of this allegation, such as clocking-in records or documented absences on file that are not medically certified. In addition, your employer will also be expected to show that you were made aware of the problem and that you were warned as to the consequences for your continued employment.

If illness or injury is at issue, it is often assumed that you cannot be dismissed fairly while on certified sick leave from your work. However, this is not true. It is difficult to lay down hard and fast rules to apply to these cases as each will be treated on its own merits. Issues such as length of service, previous record and the importance of the job will vary and will have to be taken into account. These types of claim are often divided into short-term and long-term absences.

Dismissal related to short-term illness generally occurs where you have a medical problem that results in frequent absences for short periods from the workplace. Assuming that the genuine nature of your problem was not in question, your employer will have to show that a pattern of absence exists, that it is causing problems, that the problem is unlikely to get better and that you have been warned that dismissal is likely.

In a case of a long-term absence, however, your employer will be expected to obtain detailed medical evidence that an early return to work is unlikely. There is no set period of absence by which it can be said that a dismissal will or will not be considered reasonable. Obviously, the longer the absence, the easier it is for your employer to show that it is causing genuine difficulty in terms of the organisation of the workplace.

In terms of medical evidence you may be required to attend your employer's medical expert. If there is a conflict of medical evidence between you and your employer as to the possible return date, your employer will be expected to get a second opinion before taking the decision to dismiss you.

Competence

Competence refers to your ability to do your job. In the first place, you need to be made aware of the standards that are expected of you, and these must refer to the job you were hired to do.

Secondly, if you fall short of the required standard, this must be clearly explained to you. This should be done through a formal set procedure. Your employer should also specify what improvements are necessary. These should be achievable and a reasonable timeframe must be allowed for the improvement.

Ultimately, your employer should give you a final warning setting out the likelihood of dismissal.

Qualifications

Fair dismissal on grounds of qualifications can happen in two ways. One situation is where you misled your employer about qualifications you had when applying for the job.  The other is where your employer made continued employment conditional upon your obtaining further qualifications and you failed to achieve this, having been given a reasonable opportunity to do so.

Conduct

As a ground for fair dismissal the term conduct covers a very large area of behaviour. There is a need to distinguish between gross misconduct and ordinary instances of misconduct.

Gross misconduct may give rise to instant (summary) dismissal without notice or pay in lieu of notice. Examples of gross misconduct include assault, drunkenness, stealing, bullying or serious breach of your employer's policies and practices.  Your contract of employment may contain further information concerning gross misconduct.

Ordinary instances of misconduct may be a series of minor incidents which, when taken together, are enough to warrant dismissal, although your employer is obliged to give you notice or pay in lieu of notice in this type of situation.

Your employer will need to investigate each situation adequately to obtain all the facts of the case. Except in cases of gross misconduct, you must have been given appropriate warnings about your conduct and been made aware that dismissal might result if the problems continue. If this has been done, the dismissal is fair, because you have been given a chance to improve your conduct.

Redundancy

In this case your employer will want to show that a redundancy situation exists and that therefore the dismissal is fair. To counter this, you may present one or more of the following arguments: that there is no economic justification for the redundancy; that you have been replaced; or that you were unfairly selected for redundancy.

Contravening the law

Your employer may dismiss you if your continued employment would contravene the law. For example, you need a current driving licence to work, but you have lost your licence on a drunk driving charge. You cannot continue to work without breaking the law and dismissal may be justified. However, your employer might be expected to look at alternatives depending on all the facts of the case.

Other 'substantial grounds'

This category is designed to include any situations not covered above. Your employer will be required to establish that there were other substantial grounds and that they justify your dismissal.

Unfair grounds

Certain reasons for dismissal are considered to be automatically unfair.  These include:

• 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
• 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 such as maternity leave, adoptive leave, carer's leave, parental or force majeure leave
• unfair selection for redundancy

Note: employment equality legislation prohibits dismissal based on any of the following nine grounds for discrimination: gender, marital status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but it could be possible under equality legislation.

Fair procedures

When dismissal is being considered your employer is expected to have disciplinary procedures in place and to follow them.  Disciplinary procedures set out the stages and process the employer will follow in relation to alleged shortcomings of an employee.  Generally, the procedure allows for informal warnings leading to written warnings and ultimately to dismissal. The Labour Relations Commission has published a Code of Practice on grievance and disciplinary procedures

Your employer must follow fair procedures and is required to give you appropriate warnings, make you fully aware of the allegations against you and give you an opportunity to present your side. You must also be allowed the right to be represented in any disciplinary procedures by, for example, your trade union official.
In deciding a case, the body hearing it must take into account the reasonableness or otherwise of your employer's conduct. In addition, the question as to whether or not your employer had a dismissal procedure in place will also be taken into account.

How to apply

If you wish to make a claim for unfair dismissal you should do so within six months of the date of dismissal. This time limit may be extended to 12 months in cases where exceptional circumstances have prevented the lodgement of the claim within six months.
If you qualify under the unfair dismissals legislation, you may bring your claim to a Rights Commissioner by completing the Application to Rights Commissioner - Unfair Dismissals Acts 1977-2007 (pdf)
If you or your employer object to the claim being being heard by a Rights Commissioner the claim may be made directly to the Employment Appeals Tribunal by completing form T1-A.
If a claim is heard by a Rights Commissioner, the Rights Commissioner will issue a recommendation and either you or your employer may appeal that recommendation to the Employment Appeals Tribunal.
Where a claim or an appeal is heard by the Employment Appeals Tribunal, the Tribunal will issue a determination. There is a right of appeal by either party to the Circuit Court from a determination of the Tribunal.

The Department of Enterprise, Trade and Employment has published an Explanatory Booklet for Employers and Employee on the Unfair Dismissals Acts 1977-2007 (pdf).

For information or complaint forms in order to seek redress under the Acts contact the National Employment Rights Authority.

Where to apply