It is extraordinary how many employers continue to have to pay awards due to procedural errors when dismissing an employee for misconduct. The principles of fair procedures and natural justice are broad concepts which have been refined by case law but which vary from situation to situation. Nevertheless, in claims for unfair dismissal involving misconduct, the Workplace Relations Commission (WRC) expects employers to be meticulous in adhering to these concepts. This may be a tall order for some employers, particularly where the employee’s conduct may have damaged the relationship of trust and confidence between the employer and employee.
Some questions that may be useful for employers to assist keeping in line with the concepts of fair procedures and natural justice:
– Is the investigation confined to establishing the facts without making findings?
– Is it necessary to suspend the employee in the circumstances and is it set out that the suspension is not a disciplinary sanction but to facilitate the investigation?
– Has the employee been giving the outcome of the investigation in writing?
– Does the invitation to a disciplinary hearing include:
– Has the employee been given sufficient time to prepare for the disciplinary hearing?
– Is the person conducting the disciplinary hearing impartial?
– Has the decision maker taken enough time to properly consider everything that was said at the disciplinary hearing before reaching a decision?
– Does there need to be any follow ups on what was said at the disciplinary hearing?
– Has the decision been made applying the standard of balance of probabilities based on all the facts?
– Have lesser disciplinary sanctions been considered?
– Does the dismissal letter:
– Is the person hearing the appeal more senior then the person who made the decision to dismiss?
– Is that person impartial?
– Has the employee been informed of the appeal procedure?
– Is the outcome of the appeal in writing, reflects what was put forward in the appeal and illustrates that the appeal was not pre-determined?
Employers should also be mindful that employees very often attempt to derail the process by either going on sick leave or submitting a grievance. Broadly speaking as regards the former issue, the employee should be examined by the company doctor to determine whether he/she is fit to work and/or participate in a disciplinary process. A grievance, however, should be dealt with separately and should not delay or interfere with the disciplinary process, where possible.
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