Unfair Dismissal

smiley_face400

A friend and colleague of both my current and former employers was recently dismissed from our job today. One of our other colleagues had told our manager that he had a weapon with him at work. He was then called into a meeting and told he was being dismissed for this reason. He did not have a knife with him nor was there any proof sought (from either accused or accuser) whether the accusation was true. He's only been in the job since August but was on a permanent contract where most other employees are put on a 6 month temp contract with an agency before being made permanent once this period has passed.
As he was still within his probabtionary period, I'm not sure whether this can be considered unfair dismissal or not. Would someone be able to enlighten me?

GreenFolder2

Employment law might not be where to head with this one. If someone's made something up about you that's caused you to lose your job, you need to get onto a solicitor.

davo10

Op, until your friend has been employed for more than one year, he is not covered under the Unfair Dismissals Act nor can he bring a case to an employment tribunal. If he was within his probationary period (usually 3-6 months) he can be dismissed without reason.

Put simply, your friend should move on and if there was an object which could be mistaken as a weapon, don't bring it to work.


http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/unfair_dismissal.html

GreenFolder2

It's an extremely serious accusation to make and very damaging, particularly if fed back to an employment agency.

I would seek advice on defamation, at the very least to have them withdraw the statement and apologise so you can move on cleanly.

Tigger

Sounds awful
Get a solicitor, sure they can fire him but if someone said he had a weapon when he did t and he lost his job that's serious

davo10

GreenFolder2 wrote: »

It's an extremely serious accusation to make and very damaging, particularly if fed back to an employment agency.

I would seek advice on defamation, at the very least to have them withdraw the statement and apologise so you can move on cleanly.

Defamation by the co-worker? It is not defamation by the employer if it was said by the employer to the employee only. It is up to the employee (or in this his friend, the op) if he wants to tell the world.

It seems to be notoriously difficult and expensive to win a defamation case, particularly if the accusations were not published. The op's friend would have to prove that the coworker who made the allegation intentionally defamed him and that it caused him harm.

livedadream

what employeer doesnt investigate this stuff?

if an allegation was made that an employee had a knife on site i wouldnt be calling them into a private meeting room for a chat to dismiss them, id be calling the gardai... the personal risk is to high.

how do you know they didnt have a weapon?

asking us if he was on his probation is pointless, only his contract would tell you that, im assuming you have not spoken to him in this case?

if you want to know just ask him, it might just be a case of a few things happened and this complaint was the straw that broke the camels back, also sounds like your mate doesnt really care if he didnt put up a fight about it...

strange.

GreenFolder2

davo10 wrote: »

Defamation by the co-worker? It is not defamation by the employer if it was said by the employer to the employee only. It is up to the employee (or in this his friend, the op) if he wants to tell the world.

It seems to be notoriously difficult and expensive to win a defamation case, particularly if the accusations were not published. The op's friend would have to prove that the coworker who made the allegation intentionally defamed him and that it caused him harm.

The bar is actually rather low in Ireland.

Grandeeod

davo10 wrote: »

Op, until your friend has been employed for more than one year, he is not covered under the Unfair Dismissals Act nor can he bring a case to an employment tribunal. If he was within his probationary period (usually 3-6 months) he can be dismissed without reason.

Put simply, your friend should move on and if there was an object which could be mistaken as a weapon, don't bring it to work.


http://www.citizensinformation.ie/en/employment/unemployment_and_redundancy/dismissal/unfair_dismissal.html

With respect, that is poor advice. If you are dismissed during the probationary period, you can take action via the WRC under the Industrial Relations Act 1969.

davo10

Grandeeod wrote: »

With respect, that is poor advice. If you are dismissed during the probationary period, you can take action via the WRC under the Industrial Relations Act 1969.

With greater respect, you should have read the link provided, particularly the Rules and Service sections for claiming unfair dismissal. A claim for unfair dismissal under the Industrial Relations Act 1969 it is with remembering, that the decision of the Labour Court under this legislation is not binding and very often employers do not comply with it. The only positive in such circumstances for the employee is having the recognition that they were unfairly dismissed in case they were asked in future what happened in their previous employment.


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
Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Paternity Leave and Benefit Act 2016 the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer's Leave Act 2001
Making a protected disclosure under the Protected Disclosures Act 2014
Note: employment equality legislation prohibits dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal - see 'How to apply' below.

Grandeeod

davo10 wrote: »

With greater respect, you should have read the link provided, particularly the Rules and Service sections for claiming unfair dismissal. A claim for unfair dismissal under the Industrial Relations Act 1969 it is with remembering, that the decision of the Labour Court under this legislation is not binding and very often employers do not comply with it. The only positive in such circumstances for the employee is having the recognition that they were unfairly dismissed in case they were asked in future what happened in their previous employment.


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
Availing of rights granted by the Maternity Protection Acts 1994 and 2004, the Adoptive Leave Acts 1995 and 2005, the Paternity Leave and Benefit Act 2016 the National Minimum Wage Act 2000, the Parental Leave Acts 1998 and 2006 and the Carer's Leave Act 2001
Making a protected disclosure under the Protected Disclosures Act 2014
Note: employment equality legislation prohibits dismissal based on any of the following 9 grounds for discrimination: gender, civil status, family status, age, disability, religious belief, race, sexual orientation or membership of the Traveller community. So, for example, if you have been employed for less than a year you may not be able to bring a claim under the unfair dismissals legislation, but you may be able make a complaint of discriminatory dismissal - see 'How to apply' below.

Apologies for the late reply, but I was working on a particular case that involved unfair dismissal while on probabtion. Quite frankly your above post is just full of quoted material and lacks any real understanding or experience of how unfair dismissal is dealt with while an employee is on probation. The function of the WRC is to bring the relevant legislation under an easier and more accessible system. In the first year of its operation it has been quite successful. My only personal criticism is that the WRC is not doing enough to promote its function, particularly to employees on probation.

An employee on probation has rights under the Industrial relations Act 1969 and indeed equality legislation. While the process is different, protection is afforded and successful results can be achieved. Despite any recommendation made by a WRC adjudicator or the Labour Court, not being legally binding, the decision can be enforced in a court of law in favour of the employee. Furthermore a civil action can be taken if an employee has a successful adjudication and this is upheld by an appeal in the labour court.

At the end of the day, natural justice and fair proceedure must be afforded to an employee on probation. If the employee has been wronged, facilities are in place to right that wrong and compensate said employee. There is a total and absolute misconception that if you are on probation, you have no rights and should just "get on with your life" if you believe you have been unfairly dismissed. This is wrong.

HR companies are actively updating clients on the pitfalls of dismissing an employee thats on probation.

Creol1

My understanding is that even if you are not eligible to claim "unfair dismissal", you can claim "wrongful dismissal", which can be fought through the courts rather than WR.

I think the employee is also entitled to a statement in writing of the reasons for dismissal. This could help avoid the problems of fighting a defamation case on a verbal claim.

Grandeeod

Creol1 wrote: »

My understanding is that even if you are not eligible to claim "unfair dismissal", you can claim "wrongful dismissal", which can be fought through the courts rather than WR.

I think the employee is also entitled to a statement in writing of the reasons for dismissal. This could help avoid the problems of fighting a defamation case on a verbal claim.

You are always entitled to a claim of "unfair dismissal" while on probation and the usual route of recourse is the WRC since October 2015.

Wrongful dismissal is slightly different and applies to an employee on probabtion if they can prove a breach of contract or that their constitutional rights have been breached. Claims such as those can be brought directly to court under a civil action.

Employees on probation are indeed entitled to a written statement of reasons for the discontinuation of employment. At all times employers must follow fair proceedure and natural justice.

Grandeeod

If I may, the article linked below provides a very insightful look at unfair dismissal while on probabtion. Well worth a read.

https://www.legal-island.ie/articles/ire/features/hr/2016/nov/probation-unfair-dismissal-industrial-relations-act-1969/

davo10

Grandeeod wrote: »

If I may, the article linked below provides a very insightful look at unfair dismissal while on probabtion. Well worth a read.

https://www.legal-island.ie/articles/ire/features/hr/2016/nov/probation-unfair-dismissal-industrial-relations-act-1969/

Ok, I don't want to get into a to-and-fro on this but you aren't giving the whole story, in the case you link above, the decision was non binding and it was up to the parties to decide on whether to adhere to the judgement.

From the Labour Court website:

Recommendations made by the Court concerning the investigation of disputes under the Industrial Relations Acts 1946 – 2015 are not binding on the parties concerned, however, the parties are expected to give serious consideration to the Court's Recommendation. Ultimately, however, responsibility for the settlement of a dispute rests with the parties.

So even though an amount was awarded in the case you link above, the employer did not have to pay it and the employee may not have received it.

Grandeeod

davo10 wrote: »

Ok, I don't want to get into a to-and-fro on this but you aren't giving the whole story, in the case you link above, the decision was non binding and it was up to the parties to decide on whether to adhere to the judgement.

From the Labour Court website:

Recommendations made by the Court concerning the investigation of disputes under the Industrial Relations Acts 1946 – 2015 are not binding on the parties concerned, however, the parties are expected to give serious consideration to the Court's Recommendation. Ultimately, however, responsibility for the settlement of a dispute rests with the parties.

So even though an amount was awarded in the case you link above, the employer did not have to pay it and the employee may not have received it.

You really aren't listening and please don't start using excuses about not getting into the to and fro with this. My time is important and I'm giving it here.

Please listen to the following.

Any decision made by a WRC adjudicator or the Labour Court is enforceable in a court of law. All it requires is for a party to take one further step. Maybe you should google some more. And for the record, many complaints are settled via financial renumeration before an adjudicator has even made a decision.

davo10

Grandeeod wrote: »

You really aren't listening and please don't start using excuses about not getting into the to and fro with this. My time is important and I'm giving it here.

Please listen to the following.

Any decision made by a WRC adjudicator or the Labour Court is enforceable in a court of law. All it requires is for a party to take one further step. Maybe you should google some more. And for the record, many complaints are settled via financial renumeration before an adjudicator has even made a decision.

When the labour courts own website says it is not a court of law and that its adjudications under the industrial relations act are non binding, that will do for me. You are effectively saying the Labour Court website is wrong about its own decisions being binding. You should let them know that they are wrong.

The EAT deal with unfair dismissal cases and the UDA is very clear about dismissal during probationary period.

http://www.irishstatutebook.ie/eli/1977/act/10/section/3/enacted/en/html#sec3

Grandeeod

davo10 wrote: »

When the labour courts own website says it is not a court of law and that its adjudications under the industrial relations act are non binding, that will do for me. You are effectively saying the Labour Court website is wrong about its own decisions being binding. You should let them know that they are wrong.

The EAT deal with unfair dismissal cases and the UDA is very clear about dismissal during probationary period.

http://www.irishstatutebook.ie/eli/1977/act/10/section/3/enacted/en/html#sec3

Read this.

https://www.workplacerelations.ie/en/Complaints_Disputes/Enforcement/

Grandeeod

And Davo, just to clear up a point, I never disputed that the LC or a WRC adjudicators decision WASN'T legally binding. I literally pointed out to you that the decision can be enforced in a court of law. I've pointed it out twice now and you still don't get it.

For the record the person in the link I provided got her money and didn't even have to go to court. It was settled before that. In recent days I've settled a similar case after only one adjudication hearing.

TheDoc

davo10 wrote: »

Defamation by the co-worker? It is not defamation by the employer if it was said by the employer to the employee only. It is up to the employee (or in this his friend, the op) if he wants to tell the world.

It seems to be notoriously difficult and expensive to win a defamation case, particularly if the accusations were not published. The op's friend would have to prove that the coworker who made the allegation intentionally defamed him and that it caused him harm.

Libel and slander were replaced by the all encompassing "Defamation" for this reason, it's no longer simply required to be "published" as the old legislation was woefully out of date.

It's the reason why references are weird now and becoming not much of a thing, and why you need to be careful about what is being said, not just punished.

There is recognition now that character dirtying by word of mouth is just as damaging as something published incorrectly or inaccurately.

gladfly

TheDoc wrote: »

Libel and slander were replaced by the all encompassing "Defamation" for this reason, it's no longer simply required to be "published" as the old legislation was woefully out of date.

It's the reason why references are weird now and becoming not much of a thing, and why you need to be careful about what is being said, not just punished.

There is recognition now that character dirtying by word of mouth is just as damaging as something published incorrectly or inaccurately.

Can you please elaborate on "the reasons references are weird now"

davo10

An employer might have a bad employee who they are dying to get rid of. Though the truth is always the ultimate defense, if you rip an employee in a reference you are asking for trouble. It's safer to just confirm dates of starting/finishing employment, if the new employer phones then you can fill in the blanks but insist on no record being kept of the conversation.

duploelabs

davo10 wrote: »

but insist on no record being kept of the conversation.

They can still record it if they want, it's called single party consent

davo10

I think that might have sailed over your head.

These types of conversations are usually on the qt or "off the record", " is your man any good?", "no he's a tool", "OK, thanks for the heads up".