It is important to know the difference between unfair dismissal and constructive dismissal in order to assess the next steps in a claim.
In an unfair dismissal, the employer terminates the employee’s employment and the burden of proof is on the employer to show that the dismissal was fair. A dismissal will not be an unfair dismissal if it arises from one of the following: conduct, performance, redundancy (covered by separate legislation) or the employee breaching the law. Also, a dismissal will not be deemed ‘unfair’ if it arises during an employee’s probation period (except in limited circumstances).
In a constructive dismissal case, the employee resigns and the burden shifts from the employer to employee. In a constructive dismissal case, the employee must prove that they left employment because they could not be expected to tolerate the conduct of the employer. The Employment Appeals Tribunal has stated that constructive dismissal occurs where the
“the employer’s conduct amounted to undermining the relation of trust and confidence between the parties in such a way as to go to the root of the contract”
The employee must establish that the employer behaved in a way that was so unreasonable that the employee cannot be expected to tolerate it. The conduct of both the employer and the employee will be examined. In order to succeed in a case for constructive dismissal it is vital that the employee exhaust all internal grievance procedures. Employers should take employees grievances seriously and address them within a reasonable amount of time in order to avoid a finding of constructive dismissal.
Certain procedures must be followed by employers prior to dismissal such as providing the employee with written warnings. Employers should ensure that there are clear procedures in place for dealing with cases of misconduct or incompetence. An employee on long term sick leave may be dismissed on the grounds of incapacity. An employee is entitled to a written statement from your employer of the procedure used during the dismissal within 28 days of receiving your notice.
An employee has 6 months from the date of dismissal to bring a claim to the Workplace Relations Commission. This period can be extended by 12 months where there is evidence of ‘reasonable cause’ for the delay. If you are successful in your case, you may be compensated financially (up to 104 weeks’ wages) or reinstated to your former position.
An unfair dismissal is essentially a breach of contract and an employee has the option of taking a case to the civil courts for breach of contract/ wrongful dismissal.
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