Employment law - The issue of a fair/unfair dismissal.
Have you ever been on the receiving end of the words ‘you’re fired’? Well, you’re in good company. The renowned academic Truman Capote, business guru Mark Cuban and a woman who needs no introduction, Oprah Winfrey, have all been fired. The latter, was deemed ‘unfit for television news’. In most circumstances where you have just been dismissed, it can be an extremely difficult and turbulent time. When an individual is dismissed, they are protected under The Unfair Dismissals Acts of 1977 to 2015. It is worth noting, that when I say protected, I do not mean that this legislation protects you from being dismissed - rather, it allows you to have recourse and redress if you have already been dismissed.
Firstly, in order to qualify for unfair dismissal, there must be an actual dismissal. Secondly, you must have at least 12 months service, or failing that you must have been (or believe that you were), dismissed on one of the nine grounds of discrimination i.e. gender, civil status, family status, age, disability, religious belief, race, sexual orientation or indeed membership of the travelling community. An individual is also deemed to be unfairly dismissed, if the dismissal relates to trade union membership, pregnancy or anything attributed to maternity leave. This list is non exhaustive and legal advice should be obtained to avoid ambiguity.
The Work Place Relations commission is the adjudicating body which deals with unfair dismissals. You have six months from the date of your dismissal to enter a complaint with the aforementioned commissions and failing that, you run the risk of being statute barred. There are exceptions where they will extend it to twelve months, however, these need to be exceptional circumstances and I would strongly advise that you speak to your solicitor when considering that.
Constructive dismissal is where you end your contract of employment because of the actions of your employer. Employees who can prove constructive dismissal can be returned to their jobs under their original contracts, but more often receive compensation for earnings lost due to their dismissal. Constructive dismissal is complex and should only ever be considered as a last resort when you feel your employer is not going to honour the terms of your contract. In a case for constructive dismissal, it is up to the employee, not the employer, to show that they had exhausted all avenues open to them, before resigning.
In order to successfully claim constructive dismissal, it would have to be a situation where you can reasonably say your job (as described in your contract) has already been terminated. This can be for a number of reasons:
- Your employer may be breaching the terms of your contract
- Your employer has indicated through their actions that they don’t intend to keep honouring your contract
- Your employer has acted unreasonably in a way serious enough to justify your resignation.
The other side of the coin is if you are an employer and have just dismissed somebody. Under The Unfair Dismissals Acts of 1977 to 2015, the qualifying dismissal is presumed unfair unless it can be justified under certain grounds. It is weighted in favour of the employee because dismissal can have such a major impact on the life of the employee. I believe that employers must go above and beyond in order to protect themselves.
There are three hurdles which you must cross.
- You must demonstrate that the dismissal was based on one of the fair grounds for dismissal covered under Irish Employment law – capability, competence, qualifications, conduct, redundancy, contravening the law, or other substantial grounds.
- You must be able to prove that you followed fair procedures and that you acted fairly.
- You must avoid any of the automatically unfair reasons for dismissal.
The common thread running through all of these grounds is, you must follow fair procedures. You will lose the protection offered by a fair ground if you fail to follow fair procedures when dismissing an employee. Essentially, an employee should have a process that they can follow, should they have a grievance with their employer, or indeed, any other member of staff.
If it is a case that you are a small business, there are private entities who offer a grievance procedure, which would protect you and your business going forward. If it is a situation whereby an employee’s behaviour has become unprofessional and indeed disruptive to your business, you must follow all procedures before dismissing the employee. What I mean by that is, you should not ever dismiss an employee on the spot but rather engage in a grievance process. Having an independent outside mediator attend for the purposes of resolving the situation, is always advisable too.
It was Theodore Roosevelt who said, “Far and away the best prize that life has to offer is the chance to work hard at work worth doing.” If you are an employer or employee who feels they have not had that chance, due to complications arising from either side of the relationship, you should protect your rights and talk to a solicitor today.