Employers have a legal obligation to provide their employees with written procedures to be followed before dismissal of an employee.
The safest approach for the employer to take is to follow the best practice set out in Statutory Instrument 146/2000.(See Labour Relations Commission Code of Practice re Disciplinary and Grievance procedures)
It is not mandatory to adopt the procedures set out but it makes good business sense to do so.
Both the Employment Appeals Tribunal and the Civil Courts will measure your procedures against what is set out in the Industrial Relations Act, 1990 Declaration Order when it comes to adjudicating in a dispute.
The guiding principles of a good disciplinary and grievance procedure is that
- It is fair
- It is clear
- The penalties that can be imposed are clear and
- There is an internal appeals mechanism.
Broadly good practice demands that
- The issue is brought to the attention of the immediate manager and then progressed up the line to more senior management
- The employee is represented
- Referral to a third party depending on local arrangements.
The penalties should include, in the first instance an oral warning, then a written warning, then a final written warning, suspension without pay, transfer to another job or part of the company, demotion, and dismissal.
The basic test at all stages of the procedure is “what would a reasonable employer do in the circumstances” and this will depend on the problem, be it incompetence, misconduct, or whatever issue arises. There is no set number of warnings required as it will depend on the circumstances and cases of serious misconduct may justify moving to a later stage of the procedure more quickly.
Less serious problems may be dealt with by pointing out the shortcomings, providing the opportunity to improve, the offer of training and allowing room and time for improvement. When this route is adopted the employees should be advised of the consequences of not improving and what penalties may apply.
For employers it is strongly advisable to have your grievance and disciplinary procedures reviewed regularly as the legislation can be updated regularly, case law may necessitate change, and the circumstances in the workplace can necessitate it.
Successful claims for unfair dismissal or constructive dismissal can be incredibly expensive for the employer. Firstly there is the award to be paid to the successful claimant and then there is the time and money and legal advice required to prepare for a Rights Commissioner or Employment Appeals Tribunal hearing (now the Workplace Relations Commission (“WRC”)).