Unfair Dismissal cases in Ireland are heard before the Workplace Relations Commission and are governed by the Unfair Dismissal Act 1977-2015.
Employees who are fired are often upset and unsure about whether they can take action to save their jobs or get compensation; they don’t know their rights and they don’t know what to do.
If your job is at risk, save it before you lose it
You can take action to save your job before your employer dismisses you. Preventing a dismissal before it occurs is the best outcome, so it is vital that you contact your union representative or your solicitor.
Employees who think they might be at risk should take detailed notes of every meeting with their employer. This will make it easier to recall evidence at any hearing into your dismissal. If you receive a written warning in the workplace, make sure to keep a copy of it; if you receive a verbal warning, take detailed and clear notes of it and of your response.
An employee’s account of the circumstances surrounding the warning can be relied upon at any unfair dismissals hearing.
What you cannot be dismissed for
There are circumstances for which you should not be sacked.
Joining a union
Many people have misconceptions on what they can and can’t be dismissed for. You cannot be sacked for joining a union – it is a Constitutional right!
Making a complaint
You cannot be sacked for making a complaint at work. This is unlawful. Sometimes it can be difficult to prove that the dismissal was because of the complaint. It is relatively easy for employers to hide the true reason for their dismissal, and complaints may be described as ‘causing conflict’ or a ‘poor attitude’. If an employee is making a complaint in the workplace, it is important that they safeguard themselves by formalising the complaint, preferably through the HR department. In a small business, documentation is critical so organising a formal meeting and taking a union representative if possible.
Taking unpaid leave or annual leave
Employees are entitled to various types of leave from work ranging from holidays to parental leave. Your contract of employment will set out your entitlement to paid sick leave from work. The law also gives a limited right to leave from work in a time of family crisis known as force majeure. You cannot be sacked for taking unpaid leave or annual leave.
Injuries, illness or disability
You cannot be sacked if you cannot perform some duties because of illness, injury or disability. Employers are under an obligation to make reasonable adjustments for employees with an illness, injury or disability. Employees can expect their job requirements to be reviewed and adjusted, such as flexible work hours and more regular breaks for people with chronic pain or fatigue.
What you can be dismissed for
There are circumstances for which you can be fairly dismissed.
Employees can be dismissed for poor performance, but the reasons must be valid and fair procedure must be followed. The employer has an obligation to provide you with clear warnings, training and the chance to improve. An employee could bring an Unfair Dismissal case if they can prove that the basis for the warnings was harsh, unjust or unreasonable.
Theft, fraud, drinking at work, refusal to carry out fair instructions, fighting or assault at work are all viewed as serious misconduct that can result in a dismissal. However, it is a high bar to prove serious misconduct. Such allegations must be put to you in a meeting where you have the chance to bring a support person such as a union representative and give your side of the story.
If there has been a restructure and your job is no longer required, your employer may offer redundancy, but this must be genuine. It is not open to the employer to subsequently refill the position. This is known as a sham redundancy.
Employers must follow fair procedures
Employees are always entitled to procedural fairness. The steps taken to dismiss someone are as important as actually dismissing them, and the law reflects that. Even where an employee is dismissed for a valid reason, if they are denied procedural fairness, the dismissal is unfair. Employees must be told about the reasons they might be dismissed and given a chance to respond. Where there is an investigation, they must be allowed to participate.
What to do if you are sacked
If you are dismissed whilst still in the office, you should collect any documentation that may support your case in the future. Forward any relevant emails to your personal email account where you can access them at a later date if needed. Once you get home you should immediately seek the advice of your solicitor. You have six months from the date of the dismissal to lodge a claim.