Fair grounds for dismissal

If you are dismissed from your job, it is automatically presumed to be an unfair dismissal, unless your employer can prove there are fair grounds to justify it. Examples of fair grounds are redundancy or qualification issues.

This means the employer must show evidence that the dismissal was fair and that they followed fair procedures before dismissing you.

This page explains fair grounds for dismissal, as well as the fair procedures your employer must follow before you can be fairly dismissed.

You may also want to read about unfair dismissal and constructive dismissal.

Your dismissal from your job may be ‘fair’ if your employer can prove it results from one (or more) of the following:

• Your capability to do the job
• Your competence to do the job
• Your qualifications for the job
• Your conduct (behaviour)
• Redundancy
• Breaking the law

These fair grounds for dismissal are set out in Section 6 of the Unfair Dismissals Acts.

Your employer must also prove they followed fair procedures – read about ‘Fair procedures’ below. Your employer must also prove that any allegations you have made that you were unfairly dismissed are untrue.

Your capability to do the job

Your ‘capability’ includes issues such as lateness, absenteeism, and persistent absence through illness or injury, either short-term or long-term.

If lateness or absenteeism is an issue, your employer should have proof of this allegation, such as:

• Clocking-in records
• Documented absences on file that are not medically certified

Your employer will need to show that you were made aware of the problem and that you were warned about the consequences.

Your competence to do the job

Competence refers to your ability to do your job. Firstly, your employer needs to tell you about the standards that are expected of you, to do the job you were hired for. This may be set out in your contract of employment or employee handbook.

If you do not meet the required standard, your employer must clearly explain this to you, using a formal procedure. Your employer should also tell you what improvements you need to make. These improvements should be achievable, and you must be given a reasonable timeframe to improve.

If problems with your competence continue, your employer should give you a ‘final warning’, setting out the likelihood of dismissal.

Your qualifications for the job

Fair dismissal on grounds of qualifications can happen in 2 ways:

1. You misled your employer about qualifications you had when applying for the job.
2. Your employer made your continued employment conditional on (subject to) you getting further qualifications and you did not do this. You must have been given a reasonable opportunity to get the qualifications.

Your conduct (behaviour)

As a ground for fair dismissal, the term conduct covers a very large area of behaviour. Your employer needs to distinguish between:

• Ordinary instances of misconduct
• Gross misconduct, which can lead to instant dismissal – read ‘What are grounds for instant dismissal’ below.

Ordinary instances of misconduct can be a series of minor incidents which, when taken together, are enough to justify your dismissal. Your employer must give you notice, or pay in lieu of notice.

Your employer needs to:

• Investigate each situation to get all the facts of the case
• Give you appropriate warnings about your conduct
• Make you aware that, if the problems continue, you might be dismissed

If your employer follows these steps, the dismissal is fair, because you have been given a chance to improve your conduct.

Redundancy

Your employer needs to show that there is a genuine redundancy situation, and that therefore, the dismissal is fair. If this is not the case, you will need to show one (or more) of the following:

• That there is no economic justification for the redundancy
• You have been replaced
• You were unfairly selected for redundancy

Breaking the law

Your employer can dismiss you if your continued employment would mean breaking the law.

For example, if you need a current driving licence to work, but have lost your licence on a drunk driving charge. In this case, you cannot continue to work without breaking the law and dismissal may be justified.

However, your employer might be expected to look at alternatives to dismissal, depending on all the facts of the case.

Other 'substantial grounds'

This category is designed to include any situations not covered above. Your employer must prove there were other substantial grounds and that they justify your dismissal.

Gross misconduct can lead to instant or immediate dismissal without notice or pay in lieu of notice. Examples of gross misconduct include:

• Assault
• Drunkenness
• Stealing
• Bullying
• A serious breach of your employer's policies and practices

Your contract of employment can contain further information about gross misconduct.

If you have been on certified sick leave from work due to an illness or injury, it is often assumed that you cannot be dismissed fairly. However, this is not true.

Each case will be treated on its own merits (on a case-by case basis). Issues such as length of service, previous record and the importance of the job will vary and will have to be taken into account. These types of claim are often divided into short-term and long-term absences.

Short-term absences

Dismissal related to short-term illness generally happens where you have a medical problem resulting in frequent absences for short periods. Assuming the nature of your problem is genuine, your employer must show that:

• There is a pattern of absence
• It is causing problems
• The problem is unlikely to get better
• You have been warned that dismissal is likely

Long-term absences

In a case of a long-term absence, your employer will need to get detailed medical evidence that an early return to work is unlikely.

There is no ‘set period’ of absence to say a dismissal will, or will not, be considered ‘reasonable’. However, the longer the absence, the easier it is for your employer to show it is causing genuine difficulty for the business.

In terms of medical evidence, you may need to attend your employer's medical expert. If there is a conflict of medical evidence between you and your employer (in relation to the possible return-to-work date), your employer will be expected to get a second opinion before dismissing you.

However, if your illness is considered a disability under employment equality legislation, your rights under that particular legislation need to be taken into consideration.

Your employer should have disciplinary procedures in place, which must be followed when considering dismissal.

Disciplinary procedures explain the process the employer should follow in relation to the alleged shortcomings of an employee. Generally, the procedure allows for informal warnings, which lead to written warnings, and ultimately to dismissal.

Your employer must give you details about the disciplinary procedures, in writing, within 28 days of your contract coming into effect.

Your employer must:

• Follow fair procedures
• Give you appropriate warnings
• Make you fully aware of the allegations against you
• Give you an opportunity to present your side
• Allow you the right to be represented in any disciplinary procedures by, for example, your trade union official

Read more in the Workplace Relations Commission's Code of Practice: Grievance and Disciplinary Procedures.

Getting notice of dismissal

If you are dismissed from your job, you have a right to a statutory minimum period of notice if you have worked at least 13 weeks for your employer. Your contract of employment may set out a longer period of notice.

Written statement of grounds for dismissal

You can ask your employer for a written statement giving the reasons why you were dismissed, if you have 12 months service with your employer. You can use the statement to decide whether to make a claim for unfair dismissal.

Your employer should give you this statement within 14 days of you asking.

The law on dismissals is set out in the Unfair Dismissals Acts, 1977-2007.

You can also read about fair procedures for a disciplinary at work in the Workplace Relations Committee’s (WRC’s) Code of Practice on grievance and disciplinary procedures.

If you have further questions, you can contact the WRC’s Information and customer service.