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.
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
- Told what needs improvement (eg timekeeping, attendance, conduct, work standards)
- Given the opportunity to explain
- Given an action plan to bring about the required improvement
- 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
- The procedure is fair and rational
- The basis for the disciplinary procedure is clear ie the employee knows what he has done wrong
- The penalties are clear
- 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
- Intentional damage to property
- 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.
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
- the timescale of the investigation and
- 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.
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.
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