How Employers Can Deal With the Problem Employee (and Avoid Costly Employment Law Claims)

 

problem employee

There’s a lad from outside Mullingar who has a peculiar way of making a living.

I’ll tell you about that another time, though.

Because last week he paid me a visit on different business: the common problem of the “problem employee”?

How do you handle this familiar problem?

Many employers come to me with a massive sense of frustration, sometimes anger.

Their emotions range from a sense that employment law in Ireland is loaded in favour of the employee, to fear of taking any action for fear of a costly claim to the WRC or Court from the employee.

What can you do if an employee is misbehaving or demonstrating a bad attitude or failing to perform or is guilty of misconduct or is forever missing days or guilty of persistent poor timekeeping?

Or is a liability or just not right for your organisation?

Or is he on the fiddle?

Small employers, without the benefit of trained HR professionals in their business, are often frozen with fear and indecision.

Quite frankly, they don’t have a clue what to do or what they are allowed to do to handle a problem employee.

Some employers take a metaphorical lump hammer to the problem; others take the approach of “being nice and hoping for the best”.

Neither of these approaches are recommended, quite frankly.

The Options

Firstly, you need to be mindful of a certain critical time period: 12 months’ employment or “one year’s continuous service”, according to the Unfair Dismissals Act, 1977.

Generally, an employee can only bring a claim for unfair dismissal when he/she has one year’s continuous service in the job. There are exceptions, for example, a dismissal on a discriminatory ground, or a dismissal because the employee has made a protected disclosure (Protected Disclosures Act, 2014).

By and large, though, the employee needs a year’s service.

So, if an employee is not working out, or is simply not right for your organisation, the contract of employment can be terminated.

Over one year’s service?

If the employee has more than one year’s service it is more problematic for you as an employer. The employee has more protection by virtue of the Unfair Dismissals act, 1977.

It provides that an employee can only be dismissed on specified grounds, provided there are substantial grounds justifying the dismissal :

  • Capability, competence, qualifications
  • Conduct
  • Redundancy
  • Illegality
  • Other substantial grounds

To dismiss on one of these grounds you need to ensure all your ducks are in a row; this article which I have written in the past about how to legally dismiss an employee should help.

You do need, however, to afford fair procedures and natural justice to the employee in terminating the employment as these are constitutional rights.

There is one further situation that arises: frustration of the contract. This could arise where an employee becomes ill or suffers an injury that makes it impossible for him/her to do the work. In other words, the employee is unable to fulfill his/her obligations due to incapacity.

It is said, then, that the contract is at an end as it has been frustrated.

Practical examples

Let’s look at some practical examples.

“Susan” is a secretary/receptionist in a medical practice. Her attitude is poor, her absenteeism rate is high, her work is poor, and worst of all, she has plenty of “sass” going on in her interaction with her boss because her boss is a non national.

If she has over 12 months’ service, the option for you as employer in this situation is to manage the situation professionally. You would use a performance improvement plan and/or the disciplinary procedure to let Susan know that her performance and conduct is unacceptable and will have to improve.

You would ensure to afford her the full benefit of your disciplinary procedure and ensure she is aware that improvements are required and if they are not forthcoming the sanctions set out in the disciplinary procedure will be imposed.

If she does not have 12 months’ service and is on probation either because she is in her first 6 months’ of employment or she has had her probation extended, her employment could be terminated.

“Gianluca” is a part time employee but appears to be angling to bring some sort of claim against you. He has already suffered a minor injury-back problem- as a result of lifting some stuff in the store room.

He’s due back to work shortly after his injury and his solicitor is writing to you about accepting liability for Gianluca’s injury. You have observed him carefully for a couple of years now and you know he is just gagging to quit the job and bring some sort of claim to the WRC (Workplace Relations Commission).

You are, quite frankly, walking on eggshells.

What to do? Firstly, report the personal injury suffered in the workplace to your insurer, if you have not done so already, and let the insurer deal with it.

Secondly, when he does come back, deal with him professionally, just like Susan above. Provided you respect the laws and don’t act unlawfully, you have nothing to get overly anxious about.

You do need to ensure you are giving him his correct rest breaks, holiday and public holiday entitlements, and all other employment obligations.

But once you are satisfied you are doing so you need not worry excessively.

The laws are not completely imbalanced or stacked against you, and you have rights too. It’s a myth to say otherwise.

For example, at its most basic Gianluca needs to perform in accordance with the contract of employment, and follow reasonable directions of you as employer and any of his line managers.

Even the Supreme Court held earlier in 2017 held that every wrong that an employee suffers in the job does not give rise to a claim or a legal cause of action.

So stay calm. The dice is not loaded. There is no need to act on any fleeting impulses you might have to take him into a darkened room and teach him a lesson!

Fianlly, Paul is a blocklaying contractor and Jimbo, one of his lads, is threatening to drive him around the bend. He is frequently missing from work, just texts that morning or the eveing before and says he won’t be in.

At this stage paul is getting suspicious that Jimbo is working for someone else a couple of days a week, as it seems to be the same days he is missing all the time.

In any event, the response from Jim should be the same as for Gianuca and Susan: invoke the disciplinary procedure after having the chat/some informal counselling with Jimbo to let him know the rate of “no shows” is unacceptable.

You will see that all these problems can be resolved in a professional way with no undue concern for claims against you, provided you stay calm and deal with the issues coolly and calmly.

Conclusion

Employment law is fundamentally based on the contract of employment.

If you go back through the centuries there was a “master/servant” relationship. If you fast forward a few hundred years there still exists a huge disparity in power between the employer and employee in negotiating a contract of employment.

Generally, it’s a case of, “take it or leave it”.

So statute law such as the Unfair Dismissals Act 1977 and the Organisation of Working Time Act, 1997 were introduced by legislators to protect employees and redress the inherent imbalance in equality of arms between employer and employee.

That’s all that’s happened.

So, if you are an employer, stay cool, abide by the laws and you won’t need to worry excessively about the whole shooting match being loaded against you.

How to Make an Employment Related Claim

unfair dismissal

Had enough?

Are you at breaking point?

Are you considering bringing a claim against your employer?

Are you unsure of the procedure and what to do?

Are you worried about legal costs?

By the end of this piece, I hope you will have a well informed grasp of what’s involved and what you need to consider.

The 1st thing you must do

Before deciding to bring a claim against your employer, there is one thing you must do.

You must raise your issue internally in your workplace. This will involve using the grievance procedure in use in your employment.

Because when you go to a Rights Commissioner hearing or an Employment Appeals Tribunal or any other venue, including Court, it will help your case enormously that you have tried to sort out the problem in the workplace.

You simply must give the employer the opportunity to put right what you say is wrong. Even if he doesn’t, and you know he won’t, it is strongly advisable to make your best efforts to sort out the problem.

Because later, if you do bring a claim, you will appear to have been the reasonable one and mainly concerned with having the difficulty sorted out, not making a claim.

Where can you bring your claim?

There are three types of venue to bring a claim:

  1. the specialist employment related forums such as the Rights Commissioner Service and the Employment Appeals Tribunal (this is set to change in October, 2015 with the Workplace Relations Act coming into law)
  2. Civil Court, for example the District Court, Circuit Court or High Court
  3. the Equality Tribunal.

The EAT and Rights Commissioner service can hear most employment related claims, and, for many claims you have a choice of which one to use.

The Rights Commissioner service is the bottom rung of the ladder and is probably the least intimidating place to bring a claim. One Rights Commissioner sitting alone at the head of a table hears the complaint with the parties sitting both sides of the table to present their case.

This service is designed to be informal and not at all intimidating.

The EAT hearing is a bit more formal with 3 people sitting to hear the complaint. The Chairperson will be a barrister or solicitor appointed to the Tribunal by Government; there will also be an employer representative from a body such as IBEC, and an employee representative from a trade union.

Civil Courts might be chosen in certain circumstances:

  • where you are bring a case for breach of contract or wrongful dismissal
  • where your claim is for a non physical personal injury such as stress (you would have brought this the Injuries Board in the first place but they tend not to deal with non physical injury cases and simply authorise you to bring your claim in Court by way of legal proceedings)
  • gender discrimination claims can go straight to the Circuit Court

The Equality Tribunal deals with all forms of discrimination in the workplace and they will be your 1st port of call if you are claiming that you have suffered discrimination in your job. Bear in mind that your discrimination must be on one of 9 grounds.

The 9 grounds are

  • Gender
  • Marital status
  • Family status
  • Sexual orientation
  • Religion
  • Age
  • Disability
  • Race/colour/nationality/ethnic or national origins
  • Membership of the travelling community.

The procedure and the 1 form you will need

The vast majority of employment related claims will start by the filling out of the Workplace Relations Complaint Form. You can access this form here on the Workplace Relations website.

The form can be filled in and submitted online. It will ask you for your details, the details of your employer, your complaint, what legislation you are claiming under and some other relevant details.

You should receive an acknowledgment of receipt of your complaint immediately once you have submitted the form. However you could be waiting 12-18 months for a hearing date.

It’s during this time that some efforts may be made to settle the dispute. This can occur by the Workplace Relations Early Resolutions service contacting the parties or by the parties themselves, perhaps through their solicitors, trying to settle the problem.

How much will it cost?

When you go to Court, the winner takes all.

By this I mean that if you win your case, the other side will almost certainly be ordered to pay your costs (as well as their own).

That’s not the case in employment cases at the EAT or Rights Commissioner service-each side pays their own costs.

So, how much will you have to pay? Well, it depends on how much time goes into preparing your case, how much time is spent at the hearing, whether counsel is instructed, and so on.

You should discuss this aspect of your case at the outset with your solicitor. He should be able to give you a good idea, but it will only be an estimate.

The difficulty in giving you exact figures lies the the huge difference between cases. For example, a half hour hearing with a Rights Commissioner over a very straightforward issue compared to a complex case involving counsel before the Employment Appeals Tribunal over a number of days will incur wildly different costs.

Enforcing decisions-what happens next?

If you are successful and win a positive decision, then the employer has 6 weeks within which to implement it. If he fails to do so you can make a complaint to another body in order to have your decision enforced.

A Rights Commissioner decision can be referred to the Labour Court for confirmation of the original decision. Once the Labour Court confirms it you can go to the Circuit Court for a Court Order which can be enforced against the employer.

An EAT decision can also be enforced through the Circuit Court with an order for payment being made.

How to decide what to do next

Deciding to bring a claim is a big decision.

It’s not easy, and the consequences of bringing one and losing, or winning, can be enormous.

You don’t have to suffer in silence though, or say nothing and stand idly by if your rights are being ignored or trampled upon. But you do have to be sure that you have a good chance of success and you do need to know whether there is, in fact, a breach of your rights.

Weigh up the pros and cons carefully. Don’t let your heart rule your head.

I know it’s difficult for you to be dispassionate about your problem, especially if going to work every day is a heavy chore. But you do need to have a good idea of the chances of success.

Friends and family mean well and don’t want to see you suffer.

So, before you do anything, get the best professional advice you can to give you a voice and ensure that your employment rights are upheld.

 

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