Dismissed after 6 months without any contract given - Unfair Dismissal ?

[roker]

A friend of mine was in a job for 6 month and thought that he was getting on well, then out of the blue he was dismissed over a trivial complaint. He was not given contract of employment or was given any warning. It would seem that there is a flaw in the employment laws in that a person must be in employment 12 month before unfair dismissal can be taken in to account, but this person moved house for the job and is also without a contract. Any comment please

 

[Leper]

We do not know anything other than a general non renewal of contract. Your friend if not a member of a trades union is probably paying the price and his/her successor will probably pay the same price. Shoddy treatment from the employer, it appears.

 

[roker]

Are they not breaking the law by not issuing a contract?

 

[trasneoir]

Introduction
Anyone who works for an employer for a regular wage or salary automatically has a contract of employment. While the complete contract does not have to be in writing, an employee must be given a written statement of terms of employment within 2 months of starting work

...

Probationary period
The contract can include a probationary period and can allow for this period to be extended. The Unfair Dismissals Acts 1997–2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:

• The contract of employment is in writing
• The duration of probation or training is one year or less and is specified in the contract.

 

[thedaddyman]

He should have been given a contract and the employee can complain to the Workplace Relations Commission about this. I'm not clear what the impact of him having been dismissed will have on that but the WRC can answer that question

There are particular exceptions to the 6 month rule for UD to apply but they mostly relate to Trade Union activisim or pregnancy issues.

Is it possible your friend was on probation and simply failed it? Why was he dismissed?

 

[Branz]

There will most certainly have been a probationary period, maybe 6 or 9 months which has to be worked first.

So there was NO paperwork setting out nothing: salary, holidays, etc etc?
In addition, its his opinion of it being trivial, a bit like the Da in America and the 20 minutes of action

 

[Purple]

It’s almost impossible to dismiss an employee in Ireland after 12 months so employers have to decide if they are suitable for permanent employment during that first 12 month period.

Your friends employer probably saw that the fit wasn’t right. It’s not unfair dismissal.

 

[newtothis]

It’s almost impossible to dismiss an employee in Ireland after 12 months so employers have to decide if they are suitable for permanent employment during that first 12 month period.

Your friends employer probably saw that the fit wasn’t right. It’s not unfair dismissal.

Not true - this only applies where there is a written contract that specifies a probationary period. To quote the following http://www.citizensinformation.ie/e...cts_of_employment/contract_of_employment.html

"The contract can include a probationary period and can allow for this period to be extended. The Unfair Dismissals Acts 1997–2007 will not apply to the dismissal of an employee during a period at the beginning of employment when he/she is on probation or undergoing training provided that:

• The contract of employment is in writing
• The duration of probation or training is one year or less and is specified in the contract"

In other words, there is no automatic probationary period: it has to be included in a written contact for it to have any effect.

The employer in this case is breaking the law for not providing a written contact. Whether the dismissal was unfair or not depends on what it was for and how it was carried out. See the following for more details:

http://www.citizensinformation.ie/e...nd_redundancy/dismissal/unfair_dismissal.html

Apart from the statutory grounds such as discrimination, it is up to the employer to prove that the dismissal was fair, see:

http://www.citizensinformation.ie/e...ncy/dismissal/fair_grounds_for_dismissal.html

 

[Leo]

Not true - this only applies where there is a written contract that specifies a probationary period. ...snip... In other words, there is no automatic probationary period: it has to be included in a written contact for it to have any effect.

Correct in relation to probation, but to take an unfair dismissal case, the 12 months service still applies in most cases. The Act itself states:

2.—(1) This Act shall not apply in relation to any of the following persons:

a) an employee (other than 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​

​

So to be eligible under the act, the dismissed party with less than 12 months continuous service will have to prove their dismissal was as a result of one of the grounds set out in section 6.

 

[newtothis]

Correct in relation to probation, but to take an unfair dismissal case, the 12 months service still applies in most cases. The Act itself states....

OK - I missed the statement in the page I referenced (a lot easier to read than the Act!):

"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:...[usual statutory grounds]"

 

[stephnyc]

Is there anything to prevent employers hiring new staff for less than 12 months' and letting them go, on a continual basis - so that no rights are accrued?

 

[Leo]

Is there anything to prevent employers hiring new staff for less than 12 months' and letting them go, on a continual basis - so that no rights are accrued?

Legally, not that I'm aware of. It varies by industry, but in many cases it costs so much to hire staff, train them, and then wait for them to get up to speed that you really do want to hold onto the good ones.

 

[thedaddyman]

Is there anything to prevent employers hiring new staff for less than 12 months' and letting them go, on a continual basis - so that no rights are accrued?

It would be quite common in certain multinationals to have people on temp contracts or via an agency for 11 months and then let them go. After 6 months they can then rehire them for another 11 months if they want to.

 

[Leo]

It would be quite common in certain multinationals to have people on temp contracts or via an agency for 11 months and then let them go. After 6 months they can then rehire them for another 11 months if they want to.

Legal advice we've received is that you run a real risk of them being considered full time of you do so for a number of years. I've heard other larger orgs (both Irish and multinationals) getting stricter about limiting the duration of contractor/ agency workers without a significant break. Just a few weeks isn't enough to cover you as it's not reasonable to expect they take up other employment in that time.