Job description

s7ryf3925pivug

What's the legal position if someone is given the wrong job description for a job (very different), if the salary etc are as advertised?
Say they turned down a different role that paid more specifically because of the description.

Peregrinus

Let's say you are offered, and accept, a job based on this job description for job X, which was shown to you before you accepted the offer. It turns out they stuffed up and should have shown you that job description for job Y, which is the job they actually want to you do to. And let's also say that job Y is very different, and is not a job you are interested in doing, or would have applied for, or would have accepted if offered.

You've got two options. You can argue that you have been constructively dismissed, and proceed through the tribunal for compensation. I would think your case is pretty strong but, obviously, there are a great many facts which I am simply assuming, and in a real-life case there would be a a great many more facts that I haven't even thought about. But, in principle, you're lookign good.

Or you can sue in the ordinary courts for negligent misrepresentation. This will take a lot longer and cost a lot more, but the potential damages are uncapped, and if the offer you turned down in order to take this one was very rare and very lucrative and you want to be compensated for the lost earnings and career impediments resulting from it and you feel that the two-years salary which is the maximum you can recover for unfair dismissal is not sufficient to cover your losses, then you might consider this.

s7ryf3925pivug

If the employee left during their probation period, would it affect that hypothetical case for constructive dismissal?

Beatrice Strong Theology

Beatrice Strong Theology wrote: »

If the employee left during their probation period, would it affect that hypothetical case for constructive dismissal?

Don’t you have to 12 months service before Unfair Dismissals Act applies?

GM228

Dav010 wrote: »

Don’t you have to 12 months service before Unfair Dismissals Act applies?

Link

Yes to make a claim under the Unfair Dismissals Act 1977, however too few seem to aware you can make an unfair dismissal complaint under the provisions of the Industrial Relations Act 1969 which has no qualifying time period (does not apply to constructive dismissal).

The issue of fair procedures and natural justice comes into play even when there is less than 12 months employment, failure of an employer to follow the procedures of their own grievance and disciplinary mechanisms or failure to take into account the provisions of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 can lead to a successful claim for unfair dismissal even though 12 months employment has not been reached.

In a recent Labour Court decision Beechside Company Limited T/A Park Hotel Kenmare vs A Worker LCR21798 the plaintiff was awarded €90,000 for unfair dismissal even though he had only 3 months employment.

In an earlier case Postmasters Union vs A Worker AD115 the plaintiff was awarded €30,000 for unfair dismissal even though he had only 5 months employmen, note what the LC syated:-

In all the circumstances of this case, the Court finds that the Employer’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 0f 2000 because he was on probation, was misconceived.

Consequently, the Court finds that the dismissal of the Appellant was unfair. The Court finds in favour of the appeal and overturns the Rights Commissioner’s Recommendation.

Other than than an unfair dismissal claim for a constructive type dismissal under 12 months you could potentially take an action for damages for breach of contract, damages for misrepresentation and/or breach of warranty, damages for wrongful dismissal, damages for negligence and/or negligent misstatement and breach of duty of care depending on the facts.