dismissals advice

easyontheeye

Hi,


A family member was working in a beautician for the past 5 months now. She was told yesterday that her services were no longer required as the manager was told by a customer that my family member had been sending customers to a freind.
(now putting that reason aside as she says she didnt and i can only take her word on that)

She never signed a contract, im wondering if anyone can offer me advice on the matter. does she have grounds for unfair dismissal? is she entitled to a paid week and her back week? also because she was sacked on the spot is she entitled to a week in lieu? oh and the silly girl never got a contract!!

alottodo

I'm afraid that without a contract she hasn't got a leg to stand on.

seamus

Because she is working there longer than 13 weeks, she is entitled to one weeks' notice of termination. The employer can dismiss immediately in cases of gross misconduct, which this may fall under. She can contest this through the employment appeals tribunal, but for the sake of a weeks' notice, it's not worth it.

She's not entitled to claim unfair dismissal. You have to be in employment for at least a year before you can claim unfair dismissal, except in a few particular cases. This is not one of those particular cases.

She is entitled to all of her unpaid wages, without exception. She is also entitled to be paid for all of her usused annual leave. Her employer must provide her with a P45 immediately.

easyontheeye

ok thanks for the information guys!

Jo King

There is an entitlement to a written statement of terms of employment. A Rights Commissioner will award four weeks wages if one was not supplied. An application should be made.
She may have a case for wrongful dismissal as her sacking was in breach to her rights to fair procedures and natural justice. She should have been told the name of the customer who reported her and of the steps taken to verify the statement. She would need to see a solicitor for this. It may or may not be worthwhile taking a court case. If she got another job fairly quickly the award of damages may be quite low.

AARRRGH

seamus wrote: »

Because she is working there longer than 13 weeks, she is entitled to one weeks' notice of termination. The employer can dismiss immediately in cases of gross misconduct, which this may fall under. She can contest this through the employment appeals tribunal, but for the sake of a weeks' notice, it's not worth it.

She's not entitled to claim unfair dismissal. You have to be in employment for at least a year before you can claim unfair dismissal, except in a few particular cases. This is not one of those particular cases.

She is entitled to all of her unpaid wages, without exception. She is also entitled to be paid for all of her usused annual leave. Her employer must provide her with a P45 immediately.

I agree 100% with this excellent post.

easyontheeye

hi,

Thanks again, she actually was quite upset about this that her name might be tarnished within the industry. She was even more confused when the owner said she would give her a "fantastic reference" owners words. So she contacted a solicitor and he says without a doubt she has a strong case and will take it on. Also she seeked for a contract for months but the owner kept fobbing her off with excuses, so hopefully the owner will be thought a lesson and realise people cannot be treated this way.

AARRRGH

easyontheeye wrote: »

she contacted a solicitor and he says without a doubt she has a strong case and will take it on

That doesn't sound right. Irish employee law only protects people who have been employed for more than 12 months.

I had to take legal action against an old employer (he owed me 9k in wages) so I went through all this myself.

seamus

AARRRGH wrote: »

That doesn't sound right. Irish employee law only protects people who have been employed for more than 12 months.

I had to take legal action against an old employer (he owed me 9k in wages) so I went through all this myself.

He's probably approaching it from a slander/defamation POV, rather than unfair dismissal.

r3nu4l

AARRRGH wrote: »

That doesn't sound right. Irish employee law only protects people who have been employed for more than 12 months.

It does seem strange. A long time ago I was threatened with dismissal and when I rang a solicitors firm specialising in employment law they said that as I was there under 12 months, I couldn't sue for unfair dismissal.

As it happened, the guy backed down but had he not, apparently I would have been out on my ear with no rights...

Jo King

You can sue for wrongful dismissal i.e. breach of contract at any time. Unfair dismissal is twelve months. The issue in this case is one of wrongful dismissal.
The employee will get her four weeks pay by virtue of the Terms of Employment Act.

Nody

Jo King wrote: »

You can sue for wrongful dismissal i.e. breach of contract at any time. Unfair dismissal is twelve months. The issue in this case is one of wrongful dismissal.
The employee will get her four weeks pay by virtue of the Terms of Employment Act.

I'd love to see you find the law to back up your claim for wrongful dismissal and the four weeks pay for someone who's been employeed 5 months.

Jo King

Nody wrote: »

I'd love to see you find the law to back up your claim for wrongful dismissal and the four weeks pay for someone who's been employeed 5 months.

Try this for a start

ttp://www.bailii.org/ie/legis/num_act/1994/0005.html#zza5y1994s3

Section 15 of the Unfair Dismissals Act, 1977 provides:—

"(1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal.

AARRRGH

The Unfair Dismissals act only covers people who have been employed for more than 12 months.

This Act shall not apply in relation to any of the following persons:

[GA] ( a ) an employee (other then a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

She is entitled to a weeks pay, that's all.

Jo King

AARRRGH wrote: »

The Unfair Dismissals act only covers people who have been employed for more than 12 months.



She is entitled to a weeks pay, that's all.

The remedy for unfair dismissal is only available to an employee who has been employed for 12 months. The common law remedy for wrongful dismissal is unaffected. That has no 12 month limitation in wrongful dismissal. Because the basis of the dismissal is misconduct and fair procedures were not followed she is entitled to damages. Separately because she was not given written terms and conditions she is entitled to make a claim and will be allowed four weeks wages. She is also entitled to notice and holiday pay.
Do you think a solicitor is going to get involved just for a weeks wages?

AARRRGH

Yes she is entitled to a weeks pay, and her holiday pay.

If she isn't covered by employment law, I don't really see how she has a case.

As I'm sure you know, anyone can be let go during their probation period, or by giving the legal statutory notice if they don't have a contract.

The OP is wasting her time and money if she goes the legal route!

Jo King

AARRRGH wrote: »

Yes she is entitled to a weeks pay, and her holiday pay.

If she isn't covered by employment law, I don't really see how she has a case.

As I'm sure you know, anyone can be let go during their probation period, or by giving the legal statutory notice if they don't have a contract.

The OP is wasting her time and money if she goes the legal route!

Of course she is covered by employment law!There are more laws than the Unfair Dismissals Act. She is entitled to be given written terms of employment after one month in the job as per the Terms of Employment Act 1994. She has a contract. Just because it is not written does not mean that it is not a contract. The reason she was given implies that the dismissal was for misconduct. She has a right to fair procedures which was breached.She is entitled to compensation in consequence.

Look at the extract from the judgment of Fennelly J of the Supreme Court in the case of Lingham v Health Service executive

"Before going further to deal with the implications of that, a couple of quite obvious legal matters can be referred to; firstly that according to the ordinary law of employment a contract of employment may be terminated by an employer on the giving of reasonable notice of termination and that according to the traditional law at any rate, though perhaps modified to some extent in the light of modern developments, according to the traditional interpretation, the employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it. That is the common law position and it is an entirely different matter as to whether a person has been unfairly dismissed and a different scheme of statutory remedy is available to any person dismissed whether with or without notice under the Unfair Dismissals Act , but this is not such an application. This is an action brought at common law for wrongful dismissal in the context of which an injunction was sought. That is the first general principle.

The second is that the implication of an application of the present sort is that in substance what the plaintiff/appellant is seeking is a mandatory interlocutory injunction and it is well established that the ordinary test of a fair case to be tried is not sufficient to meet the first leg of the test for the grant of an interlocutory injunction where the injunction sought is in effect mandatory. In such a case it is necessary for the applicant to show at least that he has a strong case that he is likely to succeed at the hearing of the action. So it is not sufficient for him simply to show a prima facie case, and in particular the courts have been slow to grant interlocutory injunctions to enforce contracts of employment. None of this is to deny that there had been developments in the law in recent years and it is necessary to refer very briefly to the nature of those developments. The first is that, in this jurisdiction the development can be traced to the judgment of Mr Justice Costello in a case of Fennelly v Assiunazioni Generali in which an injunction was granted directing an employer to continue payment to the plaintiff, in that case pending the hearing of the action, and that type of jurisdiction was exercised in a number of subsequent cases. It is fair to say however, that there is a very strong trend in those cases to the effect that where a person has a clear right to either a particular period of notice or a reasonable notice or has a fixed period of employment, a summary dismissal or a dismissal without notice or without any adequate notice is a first step in establishing the ground for an injunction in those sort of cases. For reasons already given this is not such a case.

A second element in cases of that sort is that, where a dismissal is by reason of an allegation of misconduct by the employee, the courts have in a number of cases at any rate imported an obligation to comply with the rules of natural justice and give fair notice and a fair opportunity to reply. This does not apply in the present case either. The defendant is not making any allegation of improper conduct so it is not the case and it is not contended that the results of natural justice apply. So those aspects of the developing line of case which can be traced from Fennelly v Assiunazioni Generali and subsequent cases including the Short case decided by Mr Justice Keane, as he then was, do not appear to apply to the present case."

AARRRGH

I still don't understand your point.

Yes, she didn't get a contract, but what has that got to do with unfair dismissal law which only kicks in after 12 months?

As someone who has gone through this himself, and as someone who has fired many people in the past, I do not follow your point that there is some secret law or loophole.

Can you explain cleary what you mean?

Jo King

What you do not understand is that there are two separate causes of action
Wrongful Dismissal and Unfair Dismissal which is a creation of statute.
Unfair Dismissal requires 12 months service.
Wrongful Dismissal does not.
Wrongful dismissal must be pursued through the courts.
Unfair dismissal must be pursued through, the EAT and on appeal to the courts.
There is no secret about it. Any good book on Employment Law will contain as much.
A small amount of knowledge is often a dangerous thing!
What you also do not appear to realise is the the 12 month limit only applies to Unfair Dismissals and not to the Terms of Employment Act 1994. There is a one month limit in that case.
The o/Ps friend would thus appear to have two separate and distinct grounds for complaint. She will almost certainly succeed on the written terms ground. It is impossible to say how she will fare on the wrongful dismissal ground.

easyontheeye

seems i caused abit of a debate on the subject

she is going to the solicitor today so ill guess ill post back what he says or thinks!

Jumpy

Sorry AARRRGH but Jo has you licked on this one. She has provided a solid argument in every post, while you keep repeating yourself.

AARRRGH

I dunno. I dealt with solicitors (two seperate solicitors) on this issue in the past and they have all told me there is no come back if the employee has been there for less than 12 months. I accept they could be wrong, but as I'm not a solicitor I'm not going to override their judgement! Are you a solicitor Jo King?

I can't find any "Wrongful dismissal" law on http://www.irishstatutebook.ie/

I've looked at the Terms of Employment Act and it says -

8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party

If you're just referring to the fact that she didn't get a contract, then of course we're all in agreement that's wrong, but she won't be entitled to extra compensation or whatever you're trying to suggest.

What exactly do you think she will gain by taking her employer to court? If you're talking about the one weeks notice like we've all agreed upon numerous time, I'm not sure what your point is...

Jo King

AARRRGH wrote: »

I dunno. I dealt with solicitors (two seperate solicitors) on this issue in the past and they have all told me there is no come back if the employee has been there for less than 12 months. I accept they could be wrong, but as I'm not a solicitor I'm not going to override their judgement! Are you a solicitor Jo King?

I can't find any "Wrongful dismissal" law on http://www.irishstatutebook.ie/

I've looked at the Terms of Employment Act and it says -



If you're just referring to the fact that she didn't get a contract, then of course we're all in agreement that's wrong, but she won't be entitled to extra compensation or whatever you're trying to suggest.

What exactly do you think she will gain by taking her employer to court? If you're talking about the one weeks notice like we've all agreed upon numerous time, I'm not sure what your point is...

You are not going to find anything about a common law remedy in a Statute Book. If you do not know common law is judge made law and statute is made by parliament.

did you ready Section 7.d of the Terms of Employment Act?

( d ) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 ,

The practise of Rights Commissioners when a complaint is made is to order four weeks pay to be paid.
This is in addition to notice and holiday pay.
Further look again at the paragraph quoted above

"A second element in cases of that sort is that, where a dismissal is by reason of an allegation of misconduct by the employee, the courts have in a number of cases at any rate imported an obligation to comply with the rules of natural justice and give fair notice and a fair opportunity to reply. This does not apply in the present case either."

That applies in this case. It may not have applied to you when you consulted solicitors so they would not have told you about it. Advice given by solicitors is specific to the person asking for it and not a general course in law and cannot be extrapolated to other seemingly similar situations.

The reason some employers find themselves in the EAT and the courts paying a fortune in damages and legal bills is that they do not sufficiently inform themselves of their legal obligations.

Wrongful can result in up to a years wages being paid (very unlikely in this case).

BTW I was a trade union branch officer for a number of years and I often have solicitors ringing me for advice.

AARRRGH

Would the OP's family member need to prove she was unfairly dismissed? If so, could this be costly?

Jo King

AARRRGH wrote: »

Would the OP's family member need to prove she was unfairly dismissed? If so, could this be costly?

She will not be claiming to be unfairly dismissed she will be claiming to have been wrongfully dismissed. She will have to prove her case. She will be at risk for the employers costs. That is why her solicitor will have to have an in depth consultation. There are solicitors who run cases like this on a no foal no fee basis. The chances of the employer (a) getting an order for costs against her and (b) recovering his costs are slim. In the majority of such cases the employer has little option but to settle before the costs escalate. The employer often has to pay his defence costs up front with little chance of getting them back. Most will quickly settle for a few months wages plus a contribution to the legal expenses.
That is separate from the claim under the Terms of Employment Act. There is only the need to prove that there were no written terms and there is no cost involved.

AARRRGH

So the employer has been stupid? He should have just said, "we no longer need your services; here's your weeks notice"?

Jo King

AARRRGH wrote: »

So the employer has been stupid? He should have just said, "we no longer need your services; here's your weeks notice"?

Thats about it. Happens every day of the week. Puts a smile on the face of the lawyers.

AARRRGH

Jo King wrote: »

Thats about it. Happens every day of the week. Puts a smile on the face of the lawyers.

Good to know. Thanks for the information.