Are you an employee?
Are you experiencing difficulties in work?
Employees contact me every day with a wide range of problems.
These can include issues to do with bullying, rest breaks, disputes about statutory leave entitlements, harassment, working extra hours and not getting paid, unfair reprimands, threats-implied or express-of dismissal, not being given a written contract of employment, and so on.
One question I always ask, though, is “when did you commence employment?”
Because the protection that you get from the Unfair Dismissals Act, 1977 requires you to have 12 months’ continuous service:
|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
There are exceptions to this one year’s continuous service requirement, for example a pregnancy related dismissal, a protected disclosure related dismissal, or a dismissal connected with trade union membership.
Without the required 12 months’ continuous employment you are vulnerable to being dismissed with little or no recourse to bring a claim for unfair dismissal. And quitting and bringing a claim for constructive dismissal is not open to you either.
I have heard some appalling stories from employees, stories of extremely poor or unfair treatment they have suffered.
Stories of people leaving a job to take up employment with another employer on the strength of attractive, but illusory, promises made by a new employer.
But if it does not work out, and the employee does not have 12 months’ continuous service, the options to right the wrong or pursue a claim are exceptionally limited.
My best tip for employees, then?
My single best tip for employees is to do your very best to get 12 months’ service under your belt in the job.
You may have complaints, problems, grievances in the first 10/11 months but you have a choice to make in relation to raising those grievances-do you do it in the first 12 months and raise your head above the parapet?
Or do you bite your tongue and wait until a year has elapsed?
Sometimes, you can win a battle and lose the war.
If you are suffering badly from bullying or harassment in the workplace it will be very difficult to endure that simply to get 12 months’ employment, and I am not recommending you do.
You must look after your health and wellbeing as your first priority. Your health truly is your wealth.
But if you have a minor grievance, or grievances, with aspects of your job, consider whether you can endure until you have 12 months’ employment behind you, and then ventilate your issues through the appropriate channels internally. These policies and procedures should be set out in the staff handbook.
Because if you raise a lot of grievances before the one year mark, you run the risk of the employer deciding you are not “the right fit” for the company, and having your employment terminated without being able to use the Unfair Dismissals Act, 1977, and related legislation to vindicate your rights.
You may also be on probation, which allows the employer to terminate you for good, bad, or no reason.
In fact, there are circumstances where I would advise the employer not to give any reason for a termination.
Don’t get me wrong: there are plenty of employment related acts on the statute books which do not require you to have a minimum period of employment.
For example, the Organisation of Working Time Act, 1997, the Terms of Employment (Information) Act,1994, the Protected Disclosures Act, 2014 etc.
But not being able to use the protection of the Unfair Dismissals Act, 1977 is a huge setback if you have lost your job. Not only does it provide for up to two years’ salary as compensation, it also provides for reinstatement or reengagement in the employment as potential outcomes in a successful claim.
Bonus Tip for Employees
My bonus tip for you is not to resign from your job hastily or without taking legal advice.
If you resign you may be able to bring a claim for constructive dismissal.
But this is a much harder case to win than one for unfair dismissal because the burden of proof to win your case shifts from the employer to you as employee.
If you resign too quickly you are also ruling out the possibility of a negotiated exit and getting a suitable reference. The employer, once he takes advice, may be happy to give you a reference and some form of settlement payment in return for your undertaking, by way of a signed agreement, not to pursue any claims arising from the employment.
Take advice from someone who has a good understanding and knowledge of employment law before you make rash decisions.
Because you do not want to find out after the fact that your legal options are extremely limited.