Dismissal
“Dismissal” simply means termination of employment by the employer. While dismissal can be a disciplinary step, it does not have to be (e.g. dismissal might be for redundancy or for health reasons).
Process
There must be a good reason for a dismissal and the dismissal must be carried out fairly. Otherwise, the employee may have a personal grievance claim against the employer.
What is fair depends on the circumstances. Any relevant provisions in the employment agreement must be followed. If an employment agreement does not have a notice period, then reasonable notice must be given.
Employees have the right to be told what the problem is and that dismissal or other disciplinary action is a possibility. Employees must then be given a genuine opportunity to tell their side of the story before the employer decides what to do.
The employer should investigate any allegations of misconduct thoroughly and without prejudice. Unless there has been misconduct so serious that it warrants instant dismissal, the employee should be given clear standards to aim for and a genuine opportunity to improve.
If an employee is dismissed, he or she has the right to ask the employer for a written statement of the reasons for dismissal. This request can be made up to 60 days after they find out about the dismissal. The employer must provide the written statement within 14 days of such a request. If the employer fails to provide this written statement, the employee may consequently be able to raise a grievance after the required 90 day limitation period.
Dismissal during a trial period
Employers are able to employ new workers on a trial period of up to 90 calendar days and may dismiss them during that time. The employer does not have to provide a written statement of the reasons for dismissal if an employee is dismissed while on a trial period and the employee cannot pursue a personal grievance for unjustified dismissal during the trial period. However, the employee may pursue a personal grievance where issues such as discrimination or harassment arise. If any employment relationship problem arises, access to mediation is available at any point. See the Department of Labour's website or call us free on 0800 20 90 20.
Forced resignation or “constructive dismissal”
If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation often known as a "constructive dismissal".
A constructive dismissal may be where, for example, one or more of the following occurs:
- the employer has followed a course of conduct deliberately aimed at coercing the employee to resign
- the employee is told to choose between resigning or being dismissed
- there has been a breach of duty by the employer (i.e. a breach of the agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.
If an employee has been forced to resign, they may have a personal grievance case.
