Workplace Investigation and Disciplinary-the Danger of an Overemphasis on Looking for Imperfections in the Procedure

workplace disciplinary procedure

Dmitri was suspended from work for allegedly assaulting a colleague. Susan was suspended on pay while an investigation was being carried out into approximately half a dozen allegations of misconduct.

When they came to me for advice they were very much focused on the procedure adopted by the employer to date. Too focused, in my view.

Let me explain. They had done a bit of research online about disciplinary procedures in the workplace, the entitlement of the employee to fair procedures and natural justice, the importance of any investigation and disciplinary procedure being carried out fairly, and so on.

That’s fair enough.

But it is an easy mistake to get preoccupied with employment rights. These rights may stem from the constitution or statute or the contract of employment.

But remember the employer, too, has rights. And the right to investigate alleged wrongdoing in the workplace is one of them.

Now, Dmitri and Susan in their initial discussion with me were focused on seeking any imperfection or infirmity in how the employer had acted up to that point. I believe that was a mistake and they might have been better advised to address the substantive allegations against them.

But you must not ignore the substantive allegation against you and you must spend as much time addressing this as seeking imperfections in the procedure adopted by the employer.

Because they were so focused on finding imperfections in how the employer had acted in applying the procedure that they had overlooked the allegations against them.

Even though they have rights to fair procedures in respect of the application of the disciplinary procedure I do not believe perfection is required of the employer. Sure, it must be sound and fair and transparent and in accordance with the procedures set out in the workplace.

But the absence of perfection, or a small infirmity in the steps taken, may not be enough for an employee to ground a claim for unfair dismissal on the basis that the procedure lacked natural justice if the allegation is a serious one such as assaulting a colleague to telling a customer to stop “wrecking my head” and “do one”.

Takeaway

My advice is if you are facing serious allegations like Dmitri and Susan is not to get too preoccupied looking for flaws in the procedure adopted to the detriment of addressing the serious allegation against you.

Because employers, especially small ones with finite resources, will not be held to a level of perfection in enforcing discipline in the workplace.

Yes, you are entitled to fair procedures; yes, you are entitled to natural justice; yes, you are entitled to fair play.

Court of Appeal Clarifies the Legal Right to Representation in Disciplinary Proceedings in the Workplace

irish rail v barry mckelvey

A decision delivered by the Court of Appeal at the end of October 2018 throws further light on this question of the right to legal representation in the workplace during disciplinary hearings.

This issue was thrown into some degree of confusion by what appeared to be inconsistent High Court decisions in the cases of Lyons v Longford Westmeath Education and Training Board, E.G. v The Society of Actuaries in Ireland, and N.M. v Limerick and Clare Education and Training Board. (You can read about these 3 High Court decisions here).

Iarnród Éireann / Irish Rail v Barry McKelvey

In this case Mr. McKelvey, an Irish rail inspector was subjected to a disciplinary procedure in his workplace into an allegation of misuse of company issued fuel cards and alleged theft of fuel which led to “significant financial loss” for the employer. Mr. McKelvey was denied the right to legal representation at the disciplinary hearing. Mr. McKelvey went to the High Court about this issue and sought to have the disciplinary hearing halted.

The High Court decided that he was denied fair procedure and constitutional/natural justice by reason of this refusal by Iarnród Éireann, even though he had the assistance of an experienced trade union official.

The High Court halted the disciplinary proceeding against Mr. McKelvey as it held that he was entitled to legal representation. The High Court arrived at this decision due to a number of factors including:

  • The impact on his reputation and future employment prospects
  • The complexity of the case
  • The fact that issues of law would probably arise in the proceeding

The High Court decision to halt the disciplinary proceeding was appealed to the Court of Appeal by Irish Rail.

Court of Appeal

The Court of Appeal agreed with the High Court in identifying the factors that a Court should look at when deciding this issue.

It disagreed with the High Court’s decision in the case of Mr. McKelvey, however, and held that the High Court had misapplied the factors to the circumstances of the case.

The Court of Appeal overturned the decision of the High Court and held that legal representation should only be granted in the most exceptional of circumstances. It also held that natural justice and fair procedures could be applied without the need for a lawyer and the help of an experienced trade union representative was sufficient stating, inter alia,

“While it is true to say that Mr McKelvey faces a disciplinary inquiry which could lead to his dismissal and which has the further potential to impact on his future employment prospects and his reputation, in this regard he is no different to a very substantial percentage of employees facing allegations of misconduct in the workplace. In my view, the allegation of misconduct made against Mr McKelvey is a straightforward one and I am not satisfied that he has identified any factual or legal complexities that may arise that he should not be in position to deal with adequately with the assistance of [his trade union representative].”

The Court of Appeal also made the point that workplace disciplinary investigations and hearings should not be directly compared with investigations and hearings carried out by professional regulatory bodies such as the Medical Council or other professional regulatory bodies.

The Court of Appeal did not clarify definitively, however, the question of the right to cross examine witnesses in a disciplinary hearing as Irish Rail had allowed this as part of its procedure and the question did not have to be addressed in the Court of Appeal.

Nevertheless, it is advisable that this right is afforded to employees involved in a disciplinary hearing even though there appears remain a difference of opinion amongst lawyers on this point.

The Court of appeal also left the door open to reapply to Mr. McKelvey if a complex issue of law arose in the process.

You can read the full decision of this Court of Appeal case here: Iarnród Éireann/Irish Rail and Barry McKelvey.

How to Carry Out a Workplace Disciplinary Procedure-Kindle Book

how to carry out disciplinary procedure

This is only a short book. But it could save you a lot of money.

80% of  successful claims for unfair dismissal are won by employees because the employer has failed to afford fair dismissal procedures in carrying out the termination.

In plain English, they have botched the procedure.

This book addresses this costly failing.

Because it explains how the employer is to carry out a disciplinary procedure, and avoid the accusation of lack of fair procedures or natural justice.

And if you are an employee it will allow you to see whether you might have a claim for unfair dismissal, on the grounds of lack of fair procedures.

It sets out, in easy to follow steps, how to carry out a disciplinary procedure in the correct manner.

It also covers:
1. Introduction to disciplinary procedures in the workplace
2. Principles of the disciplinary procedure
3. The formal disciplinary procedure
4. Issuing warnings under the disciplinary procedure
5. Probationary employees

And the price is approximately the price of a cup of coffee, or less than the price of a pint of beer.

Get it now on Amazon here.

A Step by Step Disciplinary Procedure-From Verbal Warning to Dismissal

disciplinary-procedure

Sacking an employee is a serious matter.

It can have very serious consequences going far beyond the simple loss of an income or job.

It can also have a significant societal stigma attached.

This is why the Employment Appeals Tribunal, the Rights Commissioner Service, and the Civil Courts, and other bodies are so keen that an employee is given fair procedures and natural justice.

The purpose of a disciplinary procedure is to ensure that employees reach the required standards-both in conduct and competence- in discharging their duties. A disciplinary procedure should not be simply punitive.

Before a disciplinary procedure is invoked at all, the employee should be informally counselled about his conduct, attendance, work standards, or whatever it is that’s causing the problem.

Informal counselling

The pre-disciplinary procedure informal counselling  should be carried out to ensure the employee knows the standards expected, and should be carried out by a supervisor/manager.

The employee should be

  1. Told what needs improvement (eg timekeeping, attendance, conduct, work standards)
  2. Given the opportunity to explain
  3. Given an action plan to bring about the required improvement
  4. Given a written note, signed by both supervisor/manager and employee, of the agreed action to be taken.

If this informal counselling does not bring about the required improvement the formal disciplinary procedure will be invoked.

However many employers are unsure of how to implement a disciplinary procedure in their workplace, without leaving themselves exposed to a claim for unfair dismissal.

Fair procedures and natural justice

Let’s take a look at a step by step procedure which, if followed, should ensure that the employee obtains natural justice and fair procedures.

And should ensure the employer does not lose a case for unfair dismissal on the grounds of failing to follow fair procedures.

SI 146 of 2000-Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 is not mandatory and contains guidelines only.

However not applying the principles from the Code would be a mistake by the employer because any 3rd party tribunal or Court will be unimpressed without some procedure providing fair procedures to the employee to ensure fairness and natural justice.

Even in the absence of a workplace disciplinary procedure the employee is still entitled to fair procedures and natural justice and the Code of Practice, if followed, should ensure this.

The main points about this procedure are as follows:

  • all employers should have agreed procedures to deal with grievances and disciplinary matters
  • all managers and supervisors should be aware of, and apply, these procedures
  • employee representatives should be able to assist employees in difficulty
  • any issues arising should be deal with fairly with an opportunity for the employee to make representations on his behalf
  • a range of sanctions should be provided for and considered
  • warnings should be removed from the employee’s record after a certain period of time.

The basic principles of fair procedure  are

  1. The procedure is fair and rational
  2. The basis for the disciplinary procedure is clear ie the employee  knows what he has done wrong
  3. The penalties are clear
  4. An internal appeals mechanism is in place.

To be able to show that fair procedures were followed (in cases other than those of gross misconduct and/or dishonesty), warnings should be issued to the employee setting out the cause of the complaint against him. (In cases of dishonesty, no warning is necessary)

How to carry out a formal disciplinary procedure

The steps in the disciplinary procedure generally follow graduated steps including a verbal warning, written warning, final written warning, and dismissal. However, in cases of gross or serious misconduct it is permissible to start at stage 4 of the procedure.

However, other sanctions apart from the nuclear option of dismissal should be considered by the employer. Alternatives might include a transfer to a different part of the workplace, different role, or demotion.

Keep in mind that an employee can be suspended on pay pending investigation but would only be suspended without pay pending an appeal of a dismissal.

Stage 1-Verbal warning

Generally an employee should receive a verbal warning for a first transgression.

Even though the employer is “only” giving a verbal warning, it is still part of a formal disciplinary process and the principles of natural justice, fair procedures, and equity/fairness would apply at all times.

This would involve a meeting with the employee at which the employee could bring a colleague or other representative. There is no right to bring a legal representative, unless the employer agrees.

This may be a trade union representative, even though the employer may not formally recognise or engage with the union. His role will be as a minute taker and witness, not an advocate or spokesperson.

At the meeting the employee should be advised of what the problem is and invited to respond and explain his actions.

There should be no rush to judgement by the employer as the meeting is investigatory.

Following the meeting a confirmatory letter should be given to the employee. This letter confirms that the employee has been given a verbal/oral warning. It should also contain the improvements required of the employee in respect of the behaviour which led to the warning and the timeframe within which the improvement must be made.

This letter should also state that failure to improve will lead to the 2nd stage of the disciplinary procedure and ultimately dismissal.

It should also state the time period for which it will remain on the employee’s file, after which it will be removed.  3 months would be a reasonable period for this 1st verbal warning to stay on file, but it could remain for 6 months.

If an employee was suspended with pay pending an investigation it is vital that he knows how long the suspension is to last and the investigation must be held within a reasonable time frame. “Justice delayed is justice denied”.

Once this disciplinary procedure has started the employer should assist the employee to improve conduct or performance, whichever was the source of the problem in the 1st place.

The employer should record the details of this 3 month monitoring period and retraining or relocation should be considered, if possible and reasonable.

However, if the employee fails to improve or there is a repeat of the activity that caused the oral warning in the 1st place the employer can then issue a first written warning.

Stage 2-First Written Warning

The 1st written warning can be issued within the period of time advised for monitoring after the verbal warning, provided there is no improvement in conduct or performance.

Before issuing it the employee should be invited to another meeting, told of the transgression, and given the opportunity to respond.

The written warning will then be issued and last for another 3 months. This warning should also clearly set out the nature of the problem, suggest solutions such as retraining, and advise of the possible sanctions (including dismissal) if no improvement is observed within the 3 months.

The employer should again afford all reasonable assistance to the employee to help him improve conduct and/or performance. However the empo9yer must be mindful of his duty of care to other employees also.

Stage 3-Second Written Warning

If the required improvement is not forthcoming within the 3 month period after the 1st written warning then a 2nd  written warning may be issued. This is entirely a matter for the employer and it is common for many employers to only issue a 1st and final written warning.

This warning is done in a similar fashion to the other 2 warnings referred to above but you would consider giving a 6 month monitoring period to allow improvement.

Stage 4-Final Written Warning

If the required improvement is not happening then a final written warning would be issued with a 12 month monitoring period.

The letter confirming this warning will advise that if there is no improvement or if the bad behaviour/performance is repeated then dismissal will occur.

This warning letter will be the final one prior to dismissal so it is important that it is well drafted as it will be scrutinised closely by the employee and probably his legal advisor.

This letter should only refer to the matters which have been the subject of the disciplinary procedure to date, not other matters which have never been put to the employee.

Stage 5-Dismissal or action short of dismissal

If there is no improvement after the final written warning then dismissal is the likely outcome. A meeting should be called and the employee and his representative invited.

The employer should remind the employee of the behaviour/conduct that has led to this point, the repeated transgressions/failure to improve performance sufficiently, and that the dismissal is in accordance with the disciplinary procedure.

The employee should be given the opportunity to appeal within 14 days. He should also be given a letter confirming the dismissal and the right to appeal, the time period for appeal, and who to appeal to.

Gross or serious misconduct

Gross or serious misconduct will be normally dealt with under the final stage- stage 4 or stage 5, depending on how many stages you use in your procedure.

There is no legal definition of “gross misconduct” but it would generally include

  • Criminal acts
  • Theft
  • Intentional damage to property
  • Assault
  • Dereliction of duty
  • Serious breach of health and safety procedure
  • Fraudulent behaviour
  • Falsification of records
  • Abuse of company policies/procedures
  • Abuse of trust
  • Serious sexual harassment, harassment, bullying
  • Serious breaches of internet/email policy
  • Serious breaches of data protection policy
  • Violent behaviour

This is not an exhaustive list and there may be other acts which could be considered to be serious misconduct within the context of a particular job or industry.

Serious/gross misconduct should be dealt with as follows:

1.      Notify the employee of the allegation without delay

This would involve, firstly, a preliminary gathering of the facts and, secondly, an invite to the employee to attend a meeting to lay the allegation. The employee should be told he can bring a work colleague or union representative to this meeting.

It is important that strict confidentiality is maintained as the employee is innocent until proven otherwise and is entitled to the protection of his good name.

2.      Investigation

An investigation will be carried out and the employee may be suspended with pay pending the outcome of this investigation.

It should be carried out as quickly as possible by a party/parties with the necessary expertise, agreeable to employer and employee, and in accordance with the terms of reference for the investigation. The terms of reference should set out

  1. the timescale of the investigation and
  2. the scope of the investigation, that is, deciding whether or not the allegation has been upheld.

A written record of all meetings should be kept and confidentiality maintained.

The investigator should be able to interview any employee who may be able to assist the investigation.

The employee against whom the allegation has been made should be given copies of all written notes prior to and during the investigation, eg witness statements, details of the alleged misconduct, notes. He should also be allowed representation at any meetings during the investigation process.

Once the investigation has completed a written report setting out the investigator’s decision, based on the balance of probabilities, will be given to senior management and the employee.

If the allegation has been upheld a further disciplinary meeting will be held with the employee.

3.      Disciplinary hearing

The employee should be advised of the disciplinary meeting in writing and told

  • It is a formal disciplinary meeting under Stage 4 or 5 of the disciplinary procedure
  • The purpose of the meeting is to hear representations on behalf of the employee and to decide whether a disciplinary sanction is appropriate
  • The possible outcome of the hearing
  • The right to be accompanied

Once representations have been made, and the hearing is not to look into the allegations again, the meeting will then be adjourned to allow the decision maker to decide what action, if any, is to be taken.

The meeting will be reconvened and the decision advised to the employee who will also be told of his right to appeal the decision.

Concluding Note

None of the above will apply to situations of gross misconduct which may lead to instant dismissal.

Also, more serious transgressions of conduct may lead to the procedure being started with a written warning or at a different point in the procedure.

The key point is that there is a procedure that is fair and transparent and both employer and employee know where they stand.

Equally important is that other employees see the procedure as fair and equitable and that they will get fair procedures when there is a problem.

Online Training Course for Employers/HR Professionals

You may be interested in my online course-how to carry out a disciplinary procedure in the Irish workplace.

Are You an Employee?

Are you confused about your rights or where you stand?

Are You an Employer?

You may be interested in this.

Disciplinary and Grievance Procedures-The Facts You Should Know

workplace-discipline

It’s fairly simple, you know.

One of the easiest ways for employers to blow a lot of cash is to fail to follow proper procedures when dismissing an employee.

No matter how justifiable the dismissal may be it will be a costly affair if proper procedures are not followed.

Employers have a legal obligation to provide their employees with written procedures to be followed before dismissal of an employee.

The safest approach for the employer to take is to follow the best practice set out in Statutory Instrument 146/2000. The Labour Relations Commission have published codes of practice for many aspects of employment.

Here is the Labour Relations Commission code of practice for fair disciplinary and grievance procedures.If you are an employer it will pay you to read it and be very familiar with it.

It is not mandatory to adopt the procedures set out but it makes good business sense to do so. It is particularly important in workplaces where there is no trade union and the employee is relying on individual representation.

Both the Employment Appeals Tribunal and the Civil Courts will measure your procedures against what is set out in the Industrial Relations Act, 1990 Declaration Order when it comes to adjudicating in a dispute.

The guiding principles of a good disciplinary and grievance procedure is that

  1. It is fair
  2. It is clear
  3. The penalties that can be imposed are clear and
  4. There is an internal appeals mechanism.

Broadly good practice demands that

  1. The issue is brought to the attention of the immediate manager and then progressed up the line to more senior management
  2. The employee is represented
  3. Referral to a third party depending on local arrangements.

The penalties should include, in the first instance an oral warning, then a written warning, then a final written warning, suspension without pay, transfer to another job or part of the company, demotion, and dismissal.

The basic test at all stages of the procedure is “what would a reasonable employer do in the circumstances” and this will depend on the problem, be it incompetence, misconduct, or whatever issue arises. There is no set number of warnings required as it will depend on the circumstances and cases of serious misconduct may justify moving to a later stage of the procedure more quickly.

Less serious problems may be dealt with by pointing out the shortcomings, providing the opportunity to improve, the offer of training and allowing room and time for improvement. When this route is adopted the employees should be advised of the consequences of not improving and what penalties may apply.

For employers it is strongly advisable to have your grievance and disciplinary procedures reviewed regularly as the legislation can be updated regularly, case law may necessitate change, and the circumstances in the workplace can necessitate it.

Successful claims for unfair dismissal or constructive dismissal can be incredibly expensive for the employer.

Firstly there is the award to be paid to the successful claimant and then there is the time and money and legal advice required to prepare for a Rights Commissioner or Employment Appeals Tribunal hearing.

You might also be interested in a step by step disciplinary  procedure.

You may be interested in how to avoid costly employment related claims.

Online Training Course

You may be interested in my online training course: How to Carry Out a Disciplinary Procedure in the Irish Workplace