Dismissal means the termination of the employment contract, whether or not a proper notice was given. A person is generally dismissed where he is unequivocally told that his employment is at an end or the circumstances make this abundantly clear that this so. An employee’s repudiation of the contract is likely to be deemed a self-dismissal in highly exceptional circumstances only.
Dismissal may occur on expiry of a fixed term contract, under certain circumstances. It includes the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.
Date of Dismissal
The date of dismissal, where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, is the date on which that notice expires. Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, the date of dismissal is the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates
- the earliest date that would be in compliance with the provisions of the contract of employment,
- the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment
- where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration
- of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser.
The High Court has upheld a decision of the Employment Appeals Tribunal (“EAT”) in which it was held that the employee’s date of dismissal for the purposes of the Unfair Dismissal Acts 1977-2015 was the date on which her internal appeal against her dismissal was concluded and not the date, she was actually dismissed from her employment. In this case, the employer’s procedures did not address the status of the employee while appealing a dismissal.
Constructive dismissal is where an employee justifiably resigns because of the employer’s conduct. This is limited to circumstances where the employer’s behaviour is tantamount to dismissal, and the employee justifiably believes that there is no alternative. Its scope is narrow, and recourse should be had to grievance procedures in almost all cases.
Dismissal occurs on the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.
The employee must prove that he or she was justified in resigning. This would usually necessitate the exhibition of some permanent and fundamental breach of trust by the employer. The employer’s behaviour must be unreasonable, and it must be a reasonable response to it to resign. The employee should engage with the available procedures. Exceptionally, it may be reasonable for the employee not to do so.
An employer may be entitled to resign where the employer has acted in breach of the employment contract in a fundamental way. This is an alternative to constructive dismissal and asserts that he employer has terminated the contract, by repudiating it. The employee’s resignation is the acceptance of the employer’s repudiation.
The Unfair Dismissals Act applies where there is an employer and employee relationship. A person who works under a contract of service is an employee. A person who works under a contract for services is an independent contractor, in business on his or her own account and is not covered by the Act. It has been held by the EAT that a former director who was not an employee was not protected by the Acts.
In some cases, parties may attempt to label an arrangement as self-employment/independent contract. Although the parties’ label may be accorded some weight, the substance of the relationship will determine the position.
The legislation originally required that an employee work at least 18 hours a week. However, the legislation has been twice extended, first to cover employees with at least eight hours a week and then to part-time employees. A part-time employee must not be treated in a less favourable manner than a comparable full-time employee. A part-time employee is one whose normal hours of work are less than the normal hours of work for a comparable employee.
A part-time employee may be entitled to unfair dismissal rights. See the section on part time employees. An agency worker may be entitled to unfair dismissal rights. See the section on agency workers.
An employee must have at least 52 weeks’ continuous services in order to qualify for unfair dismissal rights. This period of qualification does not apply to a dismissal based on trade union membership or activity, pregnancy, maternity (or certain connected issues) and penalisation for asserting anti-discrimination / equality rights or the beach of health safety and welfare legislation.
Any applicable notice period is added to the actual length of service for the purpose of calculating the 52 weeks’ continuous service requirement. Unused holiday periods are not added in accordance with an EAT decision.
Services is continuous unless terminated by dismissal or resignation. A strike does not break continuity, but it will not count as a period of service. Continuity will generally be maintained if the dismissal is followed by immediate reemployment. Any attempt to avoid the legislation by dismissal and reemployment is likely to be invalidated.
An employee with less tham one year’s service remains entitled to fair procedures under the Code of Practice on Grievance and Disciplinary Procedures. The Labour Court has made a number of non-binding recommendations for compensation due to breach of the Code under the Industrial Relations Act dispute resolution machinery. See the sections on Issues and Conflict.
Unfair dismissal rights apply to employees with at least 52 continuous weeks’ service. The requirement for 52 weeks’ service does not apply to a dismissal based on pregnancy (and certain related family grounds), trade union membership and certain health and safety and minimum wage related grounds. Continuity is not broken by strikes, layoffs of lockouts.
A dismissal and re-employment within 26 weeks does not break continuity. Where an employee is dismissed and re-engaged within 26 weeks, continuity of service is preserved if the dismissal is wholly or partly for the purpose of avoiding Unfair Dismissal Act rights. The Transfer of Undertaking Regulations preserve the continuity of service.
Most absences from employment due to lay off sickness or injury, do not break continuity of service.
Periods of notice required under minimum notice legislation are included in the qualification period. Therefore, in effect the rights after less than 52 weeks.
Fixed Term Contracts I
There are special provisions for employees on fixed term contracts. A genuine fixed term contract may be excluded from the legislation subject to inclusion of a statement in writing excluding the Unfair Dismissals Act. Provided that the purpose of the contract is not to avoid the legislation, then the exclusion will be allowed.
Where employees are employed for fixed terms of less than 52 weeks, which are followed by second and subsequent contracts, which cumulatively exceed 52 weeks may be deemed to have the requisite continuous service. If the purpose of the successive contracts is to avoid liability for unfair dismissal, the periods may be added together, if re-employment takes place within three months of expiry of the prior contract, if the nature of the employment is the same or similar.
Fixed Term Contracts II
The original legislation provided an exception for a fixed term or fixed purpose contract in writing, signed by the parties which provided that the Unfair Dismissals Act would not apply by reason of termination. There is now more extensive anti-avoidance legislation. Separately, after a period for renewed fixed term contracts, the employee may become entitled to a permanent contract. See the section on fixed term contract legislation.
The term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.
A dismissal may be subject to the Act where it consists of the expiry of the term of the subsequent contract without the term being renewed or the cesser of the purpose of the contract. This is where in the opinion of the adjudication officer or the Labour Court the entry by the employer into the subsequent contract was wholly or partly for, or was connected with, the purpose of the avoidance of liability under this Act.
Certain categories of employees are or may be excluded from the Unfair Dismissal legislation. This includes
- employees over the normal retiring age for employees of the same employer in similar employment;
- employees under 16 years
- members of the Defence Force and Garda Síochána;
- FAS / Solas trainees and apprentices;
- certain persons employed by the Government;
- managers and senior officers of local authorities, vocational and HSE.
Most State sector officers and employees were formerly excluded from the Act. Since 2006, the Unfair Dismissal Act applies to most public sectors officers and employees. Some public-sector officers, such as members of the Defence Forces and An Garda Siochana are not protected by the Act.
Persons who have reached the normal retirement age for their employment are excluded.
The Act does not apply to employees on probation or training under a contract in writing, where the duration of the probation or training is less than one year, and it is so specified in the contract. There are also exclusions for certain categories of probationary employees undertaking training.
There is an exemption for statutory apprentices and trainees. A statutory apprenticeship is one under Industrial Training Act or the Labour Services act. However, the rules themselves may make provision for unfair dismissal.
The expiry of a maternity or other protected leave contract is outside legislation. The employer must inform the employee at commencement, that the employment will terminate on the resumption of work by the employee on maternity or equivalent leave. The exemption covers maternity leave, additional maternity leave, adoptive leave, carers leave and certain other categories of leave on health and safety grounds related, to maternity.
Persons employed under genuine fixed term contracts are excluded. If there is a succession of fixed-term contracts where the employee is re-employed within three months, the employment is similar, and the purpose is mainly to avoid the legislation, unfair dismissal rights applies.
Fixed term contracts may be entered by persons covering another’s maternity, adoptive, parental or career’s leave, to which unfair dismissal rights do not apply.
An employee who ordinarily works abroad is not entitled to the benefit of the legislation. An employee must be ordinary resident during the term of the contract or domiciled in the state during the term of the contract where the employer is ordinarily resident in the State or has his principal place of business was in the State.
The Act does not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless
- he was ordinarily resident in the State during the term of the contract, or
- he was domiciled in the State during the term of the contract; and
- the employer in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract.
The “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.
Formerly an employment contract that involved the evasion of tax, was denied the benefit of the Act by the courts. The classic instance was where earning were under declared and money was paid “under the table.”
The legislation was amended to provide that where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, the employee shall, notwithstanding the contravention, be entitled to redress under the Unfair Dismissals Act, in respect of the dismissal.
Where, in proceedings under the Unfair Dismissals Act, it is shown that a term or condition of a contract of employment contravened any such provision as aforesaid, the adjudication officer or the Labour Court, as may be appropriate shall notify the Revenue Commissioners or the Minister for Social Welfare, as may be appropriate, of the matter.
References and Sources
Employment Law Meenan 2014 Ch. 20
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.14 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.21
Dismissal Law in Ireland Redmond 2007
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Employment Law Contracts (Book & CD-ROM) Beauchamps, Solicitors 2011
Unfair Dismissals Act 1977 (10/1977)
Worker Protection (Regular Part-Time Employees) Act 1991 (5/1991),
Unfair Dismissals (Amendment) Act 1993 (22/1993)
Protection of Employees (Part-Time Work) Act 2001 (45/2001
Civil Service Regulation (Amendment) Act 2005 (18/2005) (Part 6)
Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007)
Industrial Relations (Amendment) Act 2015 (27/2015), s. 39
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016