The Institute of Chartered Accountants in Ireland recently published advice on employee employment issues.
Despite employers often times having sufficient grounds for dismissal, they invariably lose unfair dismissal cases because fair procedures and the rules of natural justice were not adhered to but there are procedures you can follow do to avoid this.
It’s unfortunate when an unfair dismissal case is lost because advice from experienced professionals was not obtained before the dismissal procedure was put in place or, in a worst-case scenario, before the dismissal took effect. This is most often the case when it comes to court losses of this kind for companies
Constructive dismissal cases can be taken by employees where they themselves terminate their contract of employment, with or without prior notice, due to the conduct of the employer. This starts with a grievance which an employee has concerning his or her terms and conditions of employment, working environment or working relationships. Employee grievances can arise for a variety of reasons such as changing work practices, alleged discrimination, bullying or harassment, health & safety issues, promotion and grading, issues with fellow employees etc.
Unfair Dismissals Acts
First, let’s take a look at the legal framework: The Unfair Dismissals Acts 1977-2001 are intended to provide employees with legal protection from being unfairly or constructively dismissed from their jobs and to establish an adjudication system to provide redress for any employee.
Section 6(7) of the Unfair Dismissal Act states that in determining whether the dismissal is fair or unfair it has regard to:
(A) The reasonableness or otherwise of the conduct of the employer in relation to the dismissal; and
(B) the extent, if any, of the compliance or failure in complying with the employer in relation to the employee to the disciplinary procedures or the provisions of the Code of Practice on Disciplinary and Grievance Procedures (Industrial Relations Act 1990) (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.
The Rules of Natural Justice require an employee is:
- made fully aware of any formal allegation made against them;
- afforded the opportunity to reply to any formal allegation made against them;
- afforded the right to representation throughout the disciplinary and grievance processes; afforded the right to a full and objective investigation of the allegation or complaint;
- and afforded the right of appeal the outcome.
A disciplinary procedure is designed to provide an objective and consistent process to address issues of misconduct, capability, competence or qualifications, or failure to meet company standards relating to behaviour or performance. The first step is to ensure that you not only have the necessary procedure in place but that it has been issued to and signed off by all employees in order to guarantee that you are in a position to correctly manage disciplinary issues in the workplace.
The aim of having a grievance procedure is to encourage consistency, transparency and fairness in the handling of workplace problems or complaints. It provides individuals with a course of action if they have a complaint, a point of contact and timescales to resolve issues of concern and aims at resolving employee problems quickly and informally.
Separation of process
Separation of process is required in both disciplinaries and grievances. This means that the judge is not the jury. One person has responsibility for the investigation and one person has the responsibility for the outcome. Similarly, a different person who has not been involved has responsibility of the appeal stage. In some cases, this may be the Assistant Manager acting as the Investigation Manager; Office Manager acting as the Outcome Manager; the Managing Director acting as the Appeal Manager. Of course, everyone should remain objective.
The separation of process extends to the correspondence which is issued through the disciplinary and grievance processes also. The invitation to the investigation meeting will be drafted by the Investigation Manager. This manager may also be involved in the suspension of the employee in cases of suspected gross misconduct and will also interview witnesses, finalise the investigation and draft a summary report to be issued to both the employee and the Outcome Manager. The invitation to the outcome meeting, where the employee has an opportunity to respond to the summary report and include any other comments, will be drafted by the Outcome Manager. The sanction or grievance outcome will be issued by the Outcome Manager and will include the process of appeal and to whom the employee can address their appeal.
Terms of reference
Prior to commencement of the disciplinary and grievance process, a term of reference is put in place to include nominations for responsible people/managers for each stage.
Note takers can accompany the managers at each stage. Minutes of all meetings must be provided to all parties, including the employee, to review after each meeting.
Do I still need to comply if I have a small organisation?
It is important to note that in smaller organisations the separation of process must still be adhered to. Case law has indicated this the separation of process is key to ensuring fair procedures within any organisations and no leeway is given to smaller organisations for failing to comply.