The Importance of Fair Procedures in Disciplinaries

Ensuring that you, as an employer or manager, are compliant in terms of employment law and particularly in that area of disciplinary and grievance procedure is absolutely essential. It is very important 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.

In line with current employment legislation all employees should have received and signed off on the company disciplinary and grievance procedure with 28 days of commencement of employment.

Disciplinary issues can be difficult to deal with especially in environments where employees and management work closely on a day to day basis. A disciplinary and grievance procedure will make it easier for the employer to manage the situation, it ensures that the process is standardised, employees are aware of the process and know what to expect when involved in a disciplinary investigation.

Having a formal procedure in place, which is issued to all staff members will 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 is a disciplinary issue arises.

Fair Procedures

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 extend, if any, of the compliance or failure in comply 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 employers own disciplinary procedures will first be looked at as it may be more extensive than the procedures outlined in the Code of Practise.

The Rules of Natural Justice

The procedure you implement should follow the rules of natural justice – follow the procedures! Employers who commence disciplinary proceedings against their employees must ensure that they follow the rules of natural justice. The rules of natural justice require:

• An employee is made fully aware of any formal allegation made against them
• They are afforded the opportunity to reply to any formal allegation made against them
• They are afforded the right to representation throughout the disciplinary process
• They receive the right to a full and objective investigation of the allegation
• They receive the right of appeal

Case Law

The Employment Appeals Tribunal (EAT) frequently examines the importance of adopting fair procedures and the principles of natural justice prior to taking any action against an employee. Recently, the EAT awarded a Dunnes Stores checkout operator €26,000 for being unfairly dismissed after claiming unused value club card points by customers on her own card.

The EAT criticised Dunnes Stores for disregarding the rules of natural justice in the manner as they did not provide her with an appeal hearing despite her request for one. This case highlights the importance of adhering to and following the rules of natural justice.

Although implementing the disciplinary procedure can seem to be tedious and time consuming, it is clear that failure to follow the process is a costly decision that is easily avoidable. Indeed the majority of cases at third parties are lost due to a failure to follow procedures.

Another example of the cost of failing to use correct procedures can be seen in the case of a footwear company based in Co. Kildare who summarily dismissed an employee who had set up a similar business in competition with his employer.

The EAT confirmed that the employee had set up his own business which had a website advertising the services he provided. The Tribunal confirmed that it was satisfied that the employee’s behaviour provided grounds for his dismissal. However, the Tribunal was equally satisfied that the company did not use any fair procedures in the manner with which the employee was dismissed. The Tribunal confirmed that because of the summary nature of his dismissal, the employee was, in effect, unfairly dismissed by the company and the employee was awarded €3,000 in compensation.

In another recent case The EAT has ruled that a worker who was involved in an incident where a banger exploded at work injuring a number of colleagues has been unfairly dismissed. The employee in questions was awarded €1,500 for the unfair dismissal and a further €2,663 in lieu of four weeks minimum notice.

The EAT stated that the employee admitted responsibility from the outset but claimed that there had been nothing wilful in his actions. The employee had not appreciated the potential serious consequences of his actions which he appeared to categorise as “tom foolery” which was, he alleged, an established culture in the workplace.

SIPTU represented the employee at the hearing and in its ruling, the Tribunal found that the investigative and disciplinary processes in the case “were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed. The Tribunal states that it cannot disregard these fundamental flaws particularly in a situation where the firm had the advice of an external consultant in employment procedures available to it".

The Tribunal stated that it believed that the exclusion of the employee’s union representative and the denial to him of his representative of choice during the process was unfair and a fundamental breach of his contractual entitlements.

Employers invariably lose Unfair Dismissal cases because fair procedures and the rules of natural justice were not adhered to. Based on the experience of our team this happens because advice from experienced professionals was not obtained before the dismissal procedure was put in place and in a worst case scenario before the dismissal took effect.