Just because you have less than a year’s service doesn’t mean you can’t bring an unfair dismissals claim
Posted on 25th March 2019 at 22:26
As most people now know, in order to bring a claim under the Unfair Dismissals Act, people must have at least a year’s service. However, that does not mean that people dismissed with less than a year’s service cannot bring claims under other legislation.
The case of Irish Rail and Barry McKelvey (2018) IECA 346 has brought some much needed clarity to the question as to whether employees faced with disciplinary proceedings are entitled to have legal representation at any investigation and disciplinary enquiry.
The Court of Appeal in this recent Judgment indicated that employees were not entitled to legal representation at the initial investigative process. It went on to consider at some length whether employees should be entitled to legal representation and the right to examine and cross examine witnesses during the course of any subsequent disciplinary enquiry.
This may seem strange advice coming from a solicitor but in actual fact our profession make far more money out of people who don’t make Wills than people who do.
If you don’t make a Will, your estate is divided according to the provisions of the Succession Act 1965. If you are single and have parents your estate will go to them. If you have no parents but brother and sisters your estate will go to them in equal shares. If you are married with no children and don’t make a Will, your wife will inherit everything. If you are married with children and you don’t make a Will, your wife will inherit two thirds of the estate and the children will inherit one third between them.
There has been a lot of talk in the press recently as to whether people should be paid or not for Storm Emma, and there have been conflicting views as to whether people have a right to payment of wages if they were not at work during the period of Storm Emma.
It appears now that the general view amongst lawyers, and this will have to be tested legally, is that where the office is open but you cannot make it to work, you are not entitled to be paid.
I have recently been looking at the Determinations delivered by the Labour Court and it is amazing how many employers, even where they have a good case for dismissal, have had awards made against them because of their lack of fair procedures. Attached to this blog is a list setting out what an employer must do before they can successfully defend a claim for unfair dismissal. Equally, employees threatened with disciplinary proceedings are fully entitled to insist on these procedures being followed in order that they have a fair opportunity to respond to the allegations made against them. On my observations, at least 50% of unfair dismissal claims are settled or are found against the employer because of their lack of fair procedures. It is essential that these be complied with, and at Marcus Lynch we can assist you in all employment litigation.
In a recent case, O’Flynn v Cherry Inns, a lady who caught her finger in a door which was a barrier between the smoking and non-smoking areas of a public house was unsuccessful in bringing a claim against the public house. She had been awarded €75,000 in the High Court but the Court of Appeal overturned the award in it’s entirety. The Court of Appeal took the view that owners of property are not insurers. People have a duty to mind themselves and from the age of two we are taught that we should not put our fingers in doors.