The Unfair Dismissals Acts enable employees who believe they have been unfairly dismissed to present a claim of unfair dismissal to either a Rights Commissioner or to the Employment Appeals Tribunal.

The Acts apply to employees over age 16 with at least 12 months’ continuous service with the exception of;

• Close relatives of the employer who live and work in the same private house/farm
• Members of the Defence Forces or Gardaí
• FAS apprentices who have been dismissed within one month of the end of their apprenticeship

The requirement for 12 months’ service does not apply to an employee whose dismissal results from one or more of the following:

• The employee's trade union membership
• Any matters connected with pregnancy, giving birth or breastfeeding
• Exercising or proposing to exercise rights to protective leave or natal care absence
• Exercising or proposing to exercise rights to parental leave, force majeure leave or carer's leave
• Exercising or proposing to exercise rights to adoptive leave or additional adoptive leave

Section 14 of the 1977 Unfair Dismissals Act requires that within 28 days of commencement of employment, an employee must be advised of the procedures which will be used for dismissal. The Employment Appeals Tribunal has been very influenced by the dismissal methods used by Employers and the manner in which they are applied. The High Court has also suggested that the lack of procedural fairness can result in employers being unable to prove that the grounds alleged for a dismissal are justifiable.

The Unfair Dismissals Acts, 1977-2001 set out various grounds of dismissal, which, when properly followed, will be held to be fair. It is not necessary for Disciplinary Procedures to provide for an appeal against dismissal within the Organisation. If there is an appeal procedure in place it must be consistantly applied. It is important that the management person hearing the appeal is not involved in the decision to dismiss as this could render the dismissal technically unfair. An appeal against a lesser sanction can be heard through the Grievance Procedure.

Further, once a dismissal is efected the employer must furnish the employee with written reason for dismissal within 14 days of being requested to do so by the dismissed employee.

In prosecuting a claim of unfair dismissal the burden of proof shifts to the employer to justify the dismissal and thus the need for accurate minutes and records of the events surrounding and leading to dismissal is of vital importance.  In our experience the lack of any supporting documentation can prove fatal to an employer when faced with having to account for the dismissal and an otherwise justified dismissal can become difficult to recount.  Tribunal hearings are currently taking 76 weeks to convene and this is all the more reason for having accurate account of the dismissal to be held as the passage of time and the onerous duty on the employer to discharge the burden of proof will without documentation, make a straightforward situation, unnecessarily contentious.

For an employee faced with unfair dismissal they must file a claim no late than 6 months from the date of dismissal or else they face the prospect of the clam being barred.  The legislation provides that a claim can be brought within 12 months in exceptional circumstances. The case law suggests that exceptional circumstances means virtual incapacity to file the claim or some type of duress or forbearance brought to bear.  We have considerable experience in prosecuting and defending unfair dismissal claims - feel free to contact one of our advisers to discuss.