Unfair dismissal

LegacyUser

I'm not really looking for legal advice, more other peoples experiences and thoughts

Last year I started a new job, quite good money, close to home, husband agreed to stay home and mind the kids. All so far so good. After being through a rocky financial time, it was looking like things would improve. Job never really progressed like I wanted it to, got bogged down in mundane admin stuff they gave me to do but I kept going at it because once I completed the initial admin stuff things would improve or so I thought. Everything was going well from their point of view or so I thought. Plenty of praise, you are very good at your job blah blah to the supervisor saying that he was thinking of leaving and was going to recommend me for his job to the manager. All positive stuff even though I hated the work I was doing. Anyway the probation period passed. A few days later the manager calls me in, Friday evening, says it's not working out. Clear out your desk. We will pay you for your notice period. A couple of weeks later they paid me for two weeks.

Anyway under the terms of the contract, once the probation had passed, I was entitled to one months notice not two weeks and a salary raise so I went to Citizens advice who advised that I should put in a claim for unfair dismissal which I have done along with a claim for unpaid wages. Even though I had been there less than a year. Never once had they expressed anything negative about my work, I got no verbal or written warnings. I had made one mistake a month or so earlier but nothing that was not fixable and nothing had been said to me at any stage. I brought the mistake to their attention and that was grand.

We were left up the creek without a paddle. We had four youngs kids and no jobs. Luckily my husband had just been offered a job which he then took even though the salary was less than half of what I was earning. We have struggled ever since. Only one of us can work because of the kids.

I heard nothing back for a long time but just got a letter from the employer disputing everything but offering me the unpaid wages if I drop the action.

Now I know I am entitled to the unpaid wages. The probation period had expired and the contract is very clear. So I feel I have nothing to lose. I also know that this employer makes a habit of this kind of thing but has been getting away with it. At this stage I have waited so long for the money another few months won't make a difference.

Now that I have the offer letter I am going to consult a solicitor. But in the meantime would appreciate opinions and thoughts? What do people think? Has anyone been through the unfair dismissal process?

dudara

Yes, I would definitely consult a solicitor.

leeroybrown

It's interesting that Citizens Advice advised you to start an Unfair Dismissal action given that you were there less than 12 months and don't seem to be using any of the allowed grounds in that case.

LegacyUser

Yes, I met with an employment advisor at Citizens advice who said that given that there were no obvious grounds for the dismissal, I would probably be entitled to bring an action. The 12 month rule was not intended as a tool for employers to treat employees badly and get away with it. That is what I was told anyway.
The last letter I had from Labour Rights said that they were looking into my claim and would reply in due course. That was over two months ago and I have heard nothing back from them since. Obviously my ex employer is taking it seriously hence the letter. Anyway I am going to ring a solicitor tomorrow and will ring the LRC also.

watna

Yeah, I would have said something similar to the above.

I'm pretty sure you can't bring a case of unfair/constructive dismissal unless you are a permanent employee (i.e. not on probation) and have been in their employment for 12 months.

Also, if you were never notified in writing that you were off your probationary period then they can let you go when they want. THat's the point of a probationary period, that either the employee of employer can stop the contract at any stage.

I think you should definitely consult a solicitor - we can't give legal advice here and nobody is a lawyer type person so you really need to check out your particular situation.

leeroybrown

Two points:

1) You don't need to be 'permanent' to bring an unfair dismissal action, you just need to be there over 12 months. At this point you could no longer be on probation anyway. In many cases passing probation and becoming permanent are two very different things.

2) Arguably, assuming no specific contract terms, the company's failure to advise the employee within the period defined in the contract could be viewed as them automatically passing. I've got no idea which way the law tends towards for this one.

pirelli

Unreg 99 wrote: »

Yes, I met with an employment advisor at Citizens advice who said that given that there were no obvious grounds for the dismissal, I would probably be entitled to bring an action. The 12 month rule was not intended as a tool for employers to treat employees badly and get away with it. That is what I was told anyway.
The last letter I had from Labour Rights said that they were looking into my claim and would reply in due course. That was over two months ago and I have heard nothing back from them since. Obviously my ex employer is taking it seriously hence the letter. Anyway I am going to ring a solicitor tomorrow and will ring the LRC also.

You can also bring a labour relations which covers everything although the employer has no legal obligation to pay or adhere to the findings. I would be careful to confirm with the rights commisioner helpline what the status of that claim would be. Just ring the rights commisioner number in the phonebook and check. You can definetly bring a claim but confirm which act would be most relevant to your situation.

There are a few threads on this issue in the legal discussion forum.

http://www.boards.ie/vbulletin/showthread.php?t=2055264654&highlight=unfair+dismissal

These acts are at the very least worth reading. Section 9 (3) of the 2003 PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 might not apply to someone on probation and I would check this with the rights commisioner.

The following acts might not be suitable for an unfair dissmissal but deal with less favourable treatment of an employee in certain situations.

http://www.irishstatutebook.ie/2001/en/act/pub/0045/sec0016.html

This act was created for a employees with three continuous years work

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003


http://www.irishstatutebook.ie/2003/en/act/pub/0029/index.html

13.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or


(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9 (3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.



There are many actions that a dismissed employee can take.

The staus of that employee is important and whether there was any penalisation/unfavorable treatment or discrimination of that employee.

cronos

watna wrote: »

Yeah, I would have said something similar to the above.

I'm pretty sure you can't bring a case of unfair/constructive dismissal unless you are a permanent employee (i.e. not on probation) and have been in their employment for 12 months.

Also, if you were never notified in writing that you were off your probationary period then they can let you go when they want. THat's the point of a probationary period, that either the employee of employer can stop the contract at any stage.

I think you should definitely consult a solicitor - we can't give legal advice here and nobody is a lawyer type person so you really need to check out your particular situation.

I dont agree with that. If a probation period is 6 months long and you have been working there 7 months then you are not still on probation. They have to offically offer you an extended probation period which you have to agree to as your original contract says 6 months. They will offer the probation extension before the end of the 6 months so that if you dont agree to it then they can just let you go.

Getting it in writing is not at all necessary. If that were the case then 99 percent of the irish workforce is on a probation period. (which would be handy for employers given the state of the economy at the minute.)