# Unfair Dismissal



## maryduffy (10 May 2019)

Hi there,

Can anyone help please
I was employed my an agency on a contract for 9 months at a company , the agency or company never extended the contract after 9 months but one year later 13 months  i am still at the company. I go into hospital and 2 days later they ended my contact at the company , do i have an unfair dismissal case ? My contract at the agency was not terminated but of course they do not have a job for me .. 

Thank you


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## Palerider (10 May 2019)

Change your user name to something anonymous to avoid identification.

You should have chased up the contract upon expiry, your contract was with an employment agency and not the employer so I cannot see you being successful making a claim, get a good reference and move on.


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## Folsom (10 May 2019)

I would suggest that you do have a case. The absence of a contract is not sufficient to deny rights and entitlements. If you can show that you were employed, through payroll and tax contributions, then you can show that you were employed and as such were under a contract of employment, albeit not issued to you in writing.
Any changes to your employment would need to be communicated to you in accordance with the terms of your employment contract. And having been employed continuously for over 2yrs you would be entitled to minmum notice, which has not been afforded to you.
One caveat, you need to be certain who your employer was through this period, the agency or the company?
If it is the agency it could be tricky.

Google Agency workers under citizens information and workplace relations commission for more specific detail.

Also

EU Directive on Temporary Agency Work 2008/104/EC
Protection of Employees (Temporary Agency Work) Act, 2012


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## maryduffy (10 May 2019)

Hi Palerider,

I was been paid by the agency but at the same time was at the employers for 13 months . If i do not have a case for unfair dismissal then know one does .. my name is anonymous thank u xx


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## Thirsty (10 May 2019)

> .... who your employer was through this period, the agency or the company?


In this instance, unfair dismissal legislation still applies, if the employee was working at the same company.  Using an agency or letting staff go for 2 months each year and then re-hiring them were once used as loopholes to get around the employment legislation, but will not be tolerated by the WRC.

To the OP, make sure your paperwork is in order - did you give correct notification of your absence, do you have documentation to support your hospital stay/ letter from Dr. etc.,  then file a claim.


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## MangoJoe (13 May 2019)

Mary sorry to hear this, it must be a tough time for you & Hope you're recovering well despite the accompanying worry of this etc.

I'm also of the opinion that the lack of a contract here is not going to deprive you of your rights to decent and ethical treatment under the provisions of our employment law.

Hopefully you'll be posting back soon with good news.


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## Baby boomer (18 May 2019)

You also have the option of taking a case under the Employment Equality Acts for discriminatory dismissal based on the disability ground.  Disability is very widely defined under the Act and includes any physical or mental impairment or illness.  The main advantage is that awards tend to be a bit higher and are not restricted to actual economic loss as is the case with unfair dismissal.  
However, you can't claim both, it's one or the other.


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## Leo (20 May 2019)

Baby boomer said:


> You also have the option of taking a case under the Employment Equality Acts for discriminatory dismissal based on the disability ground.



Very unlikely to succeed on disability grounds on the basis of two days in hospital. Such short term incapacity does not come close to qualifying as a disability, so trying that won't go down to well.


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## Baby boomer (22 May 2019)

Leo,

With respect, I'd disagree.  It depends totally what the two days in hospital were for.  If it were a once off issue, now cleared, then yes, you're probably correct.  On the other hand, if there's an underlying condition that necessitated the two days in hospital, then that underlying condition may well qualify.  (Also the OP states she was dismissed after two days in hospital; it may well be the case that her hospital stay was longer than two days but the dismissal occurred on the second day.)  The definition of disability in the Act is actually drafted quite widely and does not necessarily coincide with the everyday usage of the word "disability."


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## Leo (10 Jun 2019)

Baby boomer said:


> With respect, I'd disagree. It depends totally what the two days in hospital were for. If it were a once off issue, now cleared, then yes, you're probably correct. On the other hand, if there's an underlying condition that necessitated the two days in hospital, then that underlying condition may well qualify.



Yeah true, but I was just going off the information provided by the OP. There was no suggestion of a formal diagnosis of any ongoing condition that might qualify or requirements for further treatment. In the absence of such, a claim for discrimination on grounds of disability won't get anywhere.

Under the Equality Act, disability is defined as:



> “disability” means—(_a_) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (_b_) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (_c_) the malfunction, malformation or disfigurement of a part of a person's body, (_d_) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (_e_) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, 


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## Baby boomer (10 Jun 2019)

Leo said:


> In the absence of such, a claim for discrimination on grounds of disability won't get anywhere.


Some odd things have been recognized as disabilities under the Act.  Alcoholism and drug addiction for starters.  In fairness, it's an oddly drafted definition.  For instance, subsection (b) requires the disease or illness to be "chronic"; (c) (d) and (e) don't.  This would allow a temporary condition to fall within the definition.  Subsection (c) in particular seems to be very wide in scope; a common cold would appear to meet the test of "...a malfunction...of a part of a person's body" would it not?  It's a malfunction of the respiratory system after all!  

BTW a huge advantage of taking a dismissal claim under the Equality Acts is that you don't require 12 months service as in the Unfair Dismissals Act. (Not relevant here as per OP though.)


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## Leo (11 Jun 2019)

Baby boomer said:


> Some odd things have been recognized as disabilities under the Act. Alcoholism and drug addiction for starters.



I see nothing odd with those examples, they can be chronic diseases and fit perfectly within the definition under the act.



Baby boomer said:


> a common cold would appear to meet the test of "...a malfunction...of a part of a person's body" would it not? It's a malfunction of the respiratory system after all!



No, a common cold is not even close to being classified as a malfunction, it's a viral infection that results in a number of side effects, all of which are a natural result of the body's response in fighting the infection.


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## shipibo (11 Jun 2019)

maryduffy said:


> Hi there,
> 
> Can anyone help please
> I was employed my an agency on a contract for 9 months at a company , the agency or company never extended the contract after 9 months but one year later 13 months  i am still at the company. I go into hospital and 2 days later they ended my contact at the company , do i have an unfair dismissal case ? My contract at the agency was not terminated but of course they do not have a job for me ..
> ...




You need to check your initial contract. and see what situations they have listed under termination. You worked with the same employer for two years, check with FLAC to get further information



			https://www.flac.ie/help/infoline/


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