Disciplinary And Grievance Procedure

Caroline McEnery writes:

Employers must ensure that they have the correct disciplinary and grievance procedure in place which is signed off by all employees. This is essential when it comes to dealing with disciplinary issues in the workplace. In line with legislation all employees should have received and signed off on the company disciplinary and grievance procedure within 28 days of commencement of employment.

Disciplinary issues can be very difficult to deal with especially in environments where employees and management work closely on a day to day basis. A disciplinary and grievance procedure makes it easier for the employer to manage the situation and it ensures that the employee is aware of the process and knows what to expect. It will also remove any ambiguity or accusations of unfair treatment as, when correctly applied, a disciplinary and grievance procedure allows for all employees to receive the same treatment if a disciplinary issue arises.

The Procedure

The Disciplinary Procedure should be designed to provide an objective and consistent process to address issues of misconduct, capability, competence or failure to meet company standards relating to behaviour or performance. All disciplinary matters will be conducted with due regard to Natural Justice and fairness. Natural Justice includes the following:

1. The right to know the nature of allegations against you;
2. The right to a fair and impartial hearing;
3. The right to representation;
4. The right to state your case;
5. The right of appeal.

In all cases of discipline the employee has the right to a fair hearing. The matter(s) should be fully and fairly investigated; the employee should be informed of the reason for the disciplinary investigation and have full right to reply. The employer should always strive to be balanced, not to pre-judge and to apply discipline in a consistent and honest manner.

At all times throughout the disciplinary procedure the employee should have the right to express his/her views and to have a chosen representative present if they so wish. The employee has the right to appeal against any disciplinary action taken against him/her.

There have been a number of cases before both the Rights Commissioner and the Employment Appeals Tribunal which have claimed Unfair Dismissal due to the fact the correct procedure was not used throughout the disciplinary process, for example:

In the case (Michelle Carey v Exhibit Shops Ltd, Dundalk – UD 930/2009) a key part of the employees role as Store Manager involved cashing up the till at the end of the day and putting the takings into the safe along with a lodgement slip detailing the day’s takings. The Store Manager received training on her role when appointed. At the end of January head office was informed that money was missing from the previous day’s takings. The Area Manager went to the shop to investigate the following day and subsequently discovered there were discrepancies in relation to two days takings and that the situation was not as reported. The Company commenced an investigation into the matter. Throughout the course of the investigation they spoke with the Store Manager, members of staff and reviewed financial documentation submitted by the Store Manager. The company dismissed the Store Manager on the basis that she had falsified records and did not appear to be conducting her job properly.

The Employee referred the matter to the Employment Appeals Tribunal under the Unfair Dismissals legislation.  In reviewing the case, the Tribunal took issue with the investigation process implemented by the Company insofar as they failed to make the allegation that the employee was accused of clear to her. The Tribunal also found that the Company did not clarify the amount of money outstanding and did not facilitate her right of representation.  The Tribunal found in favour of the employee and deemed that she had been unfairly dismissed from her employment and awarded her €16,000 as compensation.

The above case highlights the relevance that third party forums place on procedures and the significance of ensuring a full and fair investigation is carried out. Third party forums will review all procedures implemented in a methodical fashion to ensure that the Company acts in a fair and reasonable manner while affording the employee their rights. It is important to be aware of this when invoking the disciplinary procedure.