The vast majority of unfair dismissal cases-as much as 80%- are lost by employers because they have failed to follow fair procedures, not because they didn’t have a good reason for dismissing the employee.
All employees, no matter how bad their conduct or how incompetent, are entitled to fair procedures and natural justice-basic fair play, in other words-if they are at risk of losing their job.
Before looking at the procedural steps you need to take to ensure fair procedures you might want to read some more about what are considered, in law, to be fair grounds for dismissal:
- Competence
- Conduct
- Redundancy
If you have taken an employee through a fair disciplinary procedure and he has received a final written warning, or where an employee has committed an act of gross misconduct, and you are now considering dismissal you must follow fair procedures.
This involves following the general principles set out in statutory instrument 146/2000, Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.
These general principles can be given practical effect, when considering a dismissal, by taking the following 6 steps.
- The employer should write to the employee inviting her to a formal disciplinary meeting.
This letter should set out a summary of why the meeting is being requested and that the outcome of the disciplinary meeting may be dismissal.
- The employee should be told that she has the right to representation at this meeting. Generally a work colleague or trade union representative would be permitted; there is no general right to legal representation at such meetings, although there have been conflicting decisions on this issue through the years; therefore each case would be judged on its merits taking into account the gravity of the circumstances, etc.
- The employee should be given the opportunity to respond fully to all allegations/complaints and have his responses fully considered before a decision to dismiss.
- The employee should be given a bias free hearing with no pre-determining of the outcome.
- Any penalty imposed must be a proportionate response to the alleged wrongdoing or issue.
- The employee should be given the right to appeal a decision to terminate his employment.
If you are an employer it is easy to make a mess of a dismissal and leave yourself open to a successful claim for unfair dismissal. Following the 6 steps above and following the general principles set out in SI 146/2000 will ensure that you will avoid a claim.
If you are an employee and you have been dismissed and have not been afforded fair procedures and natural/constitutional justice-basic fair play-you may have a winnable case.