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Fair Procedures; Not to Be Forgotten

  • Ireland
  • General

17-09-2018

Unfair dismissal is perhaps the most common employment claim in Ireland. Potential remedies for successful claimants can include reinstatement, re-engagement and compensation of up to two years’ remuneration (salary and benefits).

It is important to remember that the burden rests with the employer to prove that a dismissal was fair. To do so, the employer must show that:

1. there was a substantial reason which justified the dismissal; and

2. fair procedures were followed.

From our experience advising clients, it is the second criterion, which is very often partially, or in some cases, entirely forgotten by employers.

For example, Joe (employer) has suspicions that Mary (employee) is taking money from the till. Joe decides to place a marked €50 note in the till, which subsequently is found in Mary’s possession. Joe is outraged and dismisses Mary on the spot. However, when making his snap decision to dismiss Mary, Joe clearly forgot about the second limb of the test; he should have followed a fair procedure before dismissing Mary. If Mary decided to sue Joe for unfair dismissal, it is highly likely that she would be successful, despite the fact that Joe had a good reason for dismissing her.

Two recent real-life examples which were considered by the Workplace Relations Commission (the “WRC”) highlight that strictly adhering to fair procedures is always essential.

In A Sales Assistant v. A Retail Chain (ADJ-00006462), a retail employee was dismissed following significant customer complaints, which had been made against her. Despite the serious shortcomings in her customer service skills, and the fact that she had been subject to progressive disciplinary sanctions over a prolonged period, her dismissal was held to be unfair. The WRC was critical of the fact that she was never provided with a copy of the allegations against her or any witness evidence, and she was not furnished with the notes of the disciplinary meetings which took place. Despite the substantial grounds justifying her termination, the WRC ultimately decided that her dismissal was unfair due to the lack
of these important aspects of fair procedures.

In A Banker v. A Bank (ADJ-00001266), the WRC criticised a number of procedural flaws to include the fact that no evidence/witnesses were produced on behalf of the employer during the disciplinary process (and this was “a substantial flaw in the process”) and no minutes had been kept of the various disciplinary meetings. The WRC held that the dismissal was unfair and ordered reinstatement.

These recent examples demonstrate, as do countless others, that it is essential to follow a fair procedure prior to dismissing an employee. As well as potentially forming the basis for a successful unfair dismissal claim, breaches of fair procedures could also ground an application to the High Court for injunctive relief or for a breach of contract. Any claims before the High Court are in public and could attract negative publicity for the employer, together with hefty legal costs.

When it comes to dismissal, or applying any disciplinary sanction, an employer’s roadmap will be its disciplinary procedure. In fact, employers are obliged by law to have a disciplinary procedure in place.

The procedure itself should be carefully followed throughout all stages of the disciplinary process. Even better, the procedure should be carefully reviewed at the outset so that the employer can determine how, practically-speaking, it may be adhered to.

For example, an essential requirement of fair procedures in any disciplinary process is that the same individual should not act in a decision-making capacity at more than one stage of the process ie Manager X should not make the decision to dismiss Employee Y and also make a decision in respect of Employee Y’s appeal. This can often cause practical difficulties, particularly in smaller companies, where there may be a limited management structure. It is always preferable for these practical difficulties to be considered and resolved at the outset, rather than further down the line, when it is too late.

Examples of some essential components of fair procedures include the following:

  • The employee should be advised in writing of the allegations against him/her at the outset of the process;
  • The employee should be afforded an opportunity to fully respond to those allegations, call witnesses and potentially even cross-examine his/her accusers;
  • The employee should be advised of the range of potential sanctions if the allegations are upheld;
  • Normally, the disciplinary procedure will provide that the employee may be accompanied to any disciplinary meetings by a colleague or trade union representative. Following a recent High Court decision, it appears that an employee may have the right to be accompanied by a legal representative if a possible outcome of any such meeting is dismissal;
  • The same individual should not act in a decision-making capacity at more than one stage of the disciplinary process; and
  • The disciplinary procedure should always provide for the right of appeal against any disciplinary sanction.

Even if there are substantial grounds justifying a dismissal, a breach of fair procedures can render the dismissal unfair. This is why it is crucial to have and to follow a clear and legally-compliant procedure, which is suitable for your business.

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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