Know Your Rights with Femi Daniyan
Service
Normally you must have at least 12 months’ continuous service with your employer in order to bring a claim for unfair dismissal. However there are important exceptions to this general rule. If you have less than 12 months’ continuous service you may bring a claim for unfair dismissal if you are dismissed for:
- Trade union membership or activity:
- Pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth; or
- Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer’s Leave Act 2001.
It is important to note that legislation prohibits dismissal based on any of the following nine grounds for discrimination: gender; civil status; family status; age; disability; religious belief; race; sexual orientation; or membership of the Traveller community.
In general, the continuity of an employee’s employment is only broken by the dismissal of the employee by the employer or the termination of the employment by the employee.
Employment status
You must be an employee, working under a contract of service. The essential element of such a contract is that the relationship is one of employer/employee, as opposed to a contract for services where the relationship involves performing a service in return for payment, that is, a contractor.
Some excluded categories
The acts do not apply to the following:
- An employee who is under 16, or who has reached normal retiring age or who is not covered by the Redundancy Payments Acts because of age
- A person working for a close relative in a private house or farm, provided both also live in the same house or farm;
- A member of the Defence Forces;
- A member of the Garda Síochána (since 4 July 2006, the acts apply to most State employees);
- A person undergoing full-time training or apprenticeship in Fás;
- An officer of vocational education committees, a county or city manager and the chief executive of the Health Service Executive; or
- An employee who is employed under a fixed-term/specified-purpose contract and where the contract is in writing, is signed by both parties and contains a clause that the acts shall not apply.
This list is in no way exhaustive.
Redress
If you are successful in your claim for unfair dismissal, the body that heard your claim may award you reinstatement, compensation or re-engagement.
Conclusions
It is important to note that an application seeking redress for a breach of a right must not be made lightly and must always be as a last resort, having tried to resolve the dispute with your employer.
Most employers have an internal grievance procedure and these must be used. Furthermore, there are a number of organisations that will facilitate mediation with your employers. These organisations must be contacted to mediate on your behalf.
It is only when all these approaches fail to resolve the matter, that you should seek redress before any of these bodies.
Finally, if you are aware of your rights and obligations from the beginning of an employee/employer relationship, you are more likely to have a successful work experience with your employer.
Knowledge is power, and a thorough knowledge of your rights will keep you on your guard and aid you in enforcing these rights when the need arises.
If you are affected in any way by the issues raised in this article and would like advice, please consult your trade union if you are a member of one, solicitor or employment expert.
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.
