Know Your Rights with Femi Daniyan
Generally speaking, most people who are dismissed from work are almost always under the impression that they have been dismissed unfairly or that they have been wronged by their employer. But this is not always the case.
If you have been dismissed from your employment, it is important to know whether or not the dismissal is fair. If it is fair, then you have no case. The unfair dismissals legislation (Unfair Dismissals Act 1977-2007) does not actually protect you from dismissal; rather, it provides a system of appeal whereby you can question the fairness of your dismissal after it has occurred. If you do this and your employer accepts that there was a dismissal, it will be for your employer to show that there were fair grounds for such a dismissal.
There is a presumption that a dismissal is unfair unless your employer can justify such a dismissal. Under the legislation you may request from your employer a written statement of the reasons for your dismissal. Your employer should provide this within 14 days of making such a request.
If you are found to have been unfairly dismissed, you may be placed back in your job or you may receive compensation for the loss of earnings as a result of the dismissal.
Have you really been unfairly dismissed?
A dismissal is considered to be automatically unfair if you are dismissed for any of the following reasons:
- 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 to maternity leave, adoptive leave, carer’s leave, parental or force majeure leave; or
- Unfair selection for redundancy.
Have you been dismissed?
You must have been dismissed in order to bring a claim. The one exception to this is if you have been constructively dismissed; this means that you resigned but claim that your employer’s conduct towards you forced you to resign.
If your employer disputes that a dismissal actually took place, you will have to establish that it did. Only then will your claim continue to the next stage of deciding whether the dismissal was fair.
Are you out of time?
The time limit for beginning a claim for unfair dismissal is six months from the date of the dismissal. Under certain circumstances you may be allowed to extend this period up to 12 months from the date of dismissal. However, these must be in exceptional circumstances.
The date of dismissal, under the unfair dismissals legislation, is the date on which the notice you were given expires. 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.
Femi Daniyan is a barrister who practices in the areas of employment, immigration, professional negligence, probate, succession and family law amongst other areas. He is an advocate on human rights issues affecting minorities. He holds an MA in International Relations from Dublin City University.
