Ending of the employment relationship can take place in many ways and under various circumstances. These are the basic situations that can occur:
- Disciplinary dismissal of an employee by the employer
- Resignation from work by the employee due to the conduct of the employer (constructive dismissal)
- resignation from work by the employee with notice period
- Termination of the employment relationship by mutual agreement (compromise agreement)
Dismissal of an employee by the employer
The employer may either dismiss an employee following an internal disciplinary procedure (verbal or written warnings) or dismiss the employee immediately (gross misconduct dismissal).
In both cases, the employer has the following obligations:
- apply an appropriate procedure that must be honest and fair (fair procedure). The procedure is outlined either in the employment contract or in the employee handbook. Alternatively, the employer may set out the procedure they will follow at the start of the process. The basic rules that such a procedure should meet are described in the legal act: The Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000. If a complaint is made for unfair dismissal, the Labour Court will assess whether the procedure used was fair.
- The reason for dismissal must be true and reasonable. In general, it is a reason that allows a reasonable, ordinary employer to resign from an employee' services. Therefore, it is incorrect to think that an employer should always first give the employee an oral or written warning. This will happen in many cases, but not always. It all depends on the circumstances and the seriousness of the allegation raised as a ground for dismissal.
Formal issues – what to keep in mind
There are many aspects of a disciplinary procedure in the workplace. It is impossible to describe them all without knowing the specific procedure used in a particular workplace. The employer should always follow the procedure he defined for the workplace. The employees should always use their right to appeal a disciplinary decision - whether it be a warning or a dismissal. No matter if there are remarks that the decision is final, no matter what the employee thinks of the employer's conduct, they should always submit an appeal against the decision.
Material issues - reason for dismissal - what to keep in mind
There is no legal provision or case-law in the Irish common law system that would require an employer to give an employee a warning: be it verbal first, then written, then final written - before dismissal. It all depends on the circumstances and the reason for the disciplinary action. It is advisable to seek legal assistance and advice and not to assume that the first disciplinary misconduct will always end with only an oral or written warning. It is also recommended to appeal against such a warning in order to provide a clear written statement of the employee's view on the allegation of misconduct in the workplace.
Resignation from work by the employee due to the conduct of the employer (constructive dismissal)
It may happen that an employee resigns from work at the fault of the employer. The basic principle is that an employee can always resign from work. In a situation where an employee believes that he is in some way forced to resign from work due to breach of his rights, or harm that exists in the workplace, it is worth to seek legal advice before making a decision to resign.
A constructive dismissal is a situation in which an employee terminates the employment relationship, with or without notice period, at the employer's fault (due to the employer's specific conduct to the employee).
The employer's conduct has to be such that another average and reasonable employee would have made the same decision to terminate the employment by fault of the employer. This is similar line of thought as in the case where it was the employer who dismissed the employee.
Constructive dismissal – basic rules
In order to be able to submit a claim for constructive dismissal and issue court proceedings/application for compensation of terminating the employment relationship caused by the employer, the employee must meet the following basic requirements:
- The length of service must be at least 12 months (there are some exceptions, e.g. discrimination).
- The employer's conduct was in breach of the employment contract/terms and conditions of employment or was sufficiently serious to justify the resignation. Conduct of co-workers towards the employee that has not been properly addressed by the employer (despite his knowledge) can be considered as such for which the employer is also responsible.
- The employee has exhausted the internal grievance procedure.
- Resignation should be the final step when there is no other way to resolve the problem
- Obtain good legal advice before resigning because in the labour court, the employee will have to prove that: he has used all of the procedures and that the reason for resignation was so serious that it justified the resignation.
Termination of the employment relationship by mutual agreement (compromise agreement)
Such termination of the employment relationship means that by signing the agreement, the employee waives the right to make any claims relating to this employment relationship in the future. This applies to all claims, including claims for: unpaid remuneration, holidays, but also claims for compensation for accidents at work or for health problems resulting from the conditions under which the work was performed. More information can be found in the section: Compromise Agreement.
Claiming your rights
Employees have the right to submit a complaint under a number of employment acts regarding contracts of employment, remuneration, breaches of working time regulations, etc. The basic time limit for submitting a complaint to the WRC - Workplace Relations Commission is 6 months. It is not true that claims can wait until the end of employment contract (in such a case the complaint can cover the last 6 months of the employment). It is possible to extend the time limit for a complaint to 12 months - but certain conditions must be complied with. Ignorance of the law or the language barrier are not considered to be grounds for applying for an extension of the complaint time limit.
In cases of breaches of the Working Hours Act, the WRC (Adjudicator) has the right to grant compensation of up to the amount of the employee's two-year salary.
List of sample cases, where Krystian Boino represented our office clients before labour courts:
Shop Assistant-v- Shop decision nr ADJ-00014634
Agency employee redundancy
An Agency Worker An Agency Worker provider, WRC decision nr ADJ-00015084
Redundancy after lay-off period
Crèche Assistant Manager v A Crèche, decision nr ADJ-00013421
Proper introduction of layoff, redundancy claim
G4S SECURE SOLUTIONS (IRELAND) LTD - AND - KRZYSZTOF STANEK; Labour Court case no.: RPD186
Working time complaint
Pracownik -v- G4S SECURE SOLUTIONS (IRE) LTD; Labour Court case nr: DWT1832
Industrial Relations Act complaint
Pracownik -v- Firma Ochroniarska; Labour Court case no.: LCR21859
CLELANDS SUPERMARKETS LTD -v- Employee Labour Court decision no. EDA1735
Discriminatory dismissal during sick leave
Maciej Czajka -v- Musgrave Retail Partners Ireland Ltd; decision no. DEC-E2017-084
Discrimination- dismissal of pregnant employee
Employee- v- WRIGHTS OF HOWTH SEAFOOD BARS LIMITED; Labour Court decision no: EDA1728
Redundancy- alleged transfer of undertakings (one of 49 cases)
Employee -v- Nine One One Retail Limited (In Liquidation), Employment Appeals Tribunal decision no.: RP328/2014
Pregnancy discrimination- reduction of working hours
A Female Worker -V- A Retail Multiple Adjudicator/Equality Officer decision no. DEC-E2016-064
Hourly rate- agency workers
Employees-v- NOEL RECRUITMENT CITI NORTH LIMITED; Labour Court decision no.: AWD1517
Pregnant employee dismissal
Employee-v- ROTTAPHARM LTD; Labour Court decision no: EDA159
Employee-v- Employer; Labour Court decyzja nr EDA1314