Invitation to Disciplinary Meeting

An employee who attends an unfair workplace investigation or disciplinary meeting will get the feeling of something being amiss and in essence that there is something unfair in the approach adopted by the employer regarding the meeting, which causes the employee to lose trust in the employer and the process. The employee considers the conduct of the employer opaque in such a scenario and a predetermined result was arrived at before the date of the meeting.

Evidently most employees will not be aware of employment law or have experience of having taken a case before.

The result is that they don’t then know what their rights are, or what should have happened at a disciplinary meeting.

If an employee is faced with having to attend a disciplinary meeting, a helpful reference point for them to get a greater understanding of natural justice and fair procedures can be garnered from a review of the Code of Practice and Disciplinary Procedures Declaration Order 2000 which can be seen here. It is worth reading for any employee before attending a disciplinary meeting.

The fundamental purpose of a Disciplinary meeting is so the employer has the opportunity to furnish all of their concerns about the employee to the employee.

The employee then should have the opportunity to answer the allegations and make any submissions as to why he/she should not be dismissed or disciplined.

Employers must comply with general principles of natural justice and fair procedures.

Some important questions for an employee to consider after a disciplinary meeting:

• Were they furnished with the specific allegations ie the detail, the time, place, when, where etc. of the allegations in advance. Many employees receive notice to meetings with an absence of detail and it is then impossible for the employee to know the facts of the allegations in advance of a meeting;
• Was the employee afforded with a right to respond ?;
• Was the employee afforded the right to representation ?;
• Was the employee afforded with a right to a fair and impartial determination of the allegations ?;
• Were the employers procedures undertaken rushed which seemed more like a box ticking exercise ?;
•  Was the basis for the disciplinary action rational and clear ?;
• Were the range of penalties also clear and well-defined ?;
• Was an the employee heard and were they afforded with an opportunity to defend themselves ?;
• Was an internal appeals mechanism available to the employee ?.
• Did the employer consider lesser draconian sanctions to that of dismissal ?;
• Was the employee forewarned in advance of the disciplinary meeting that he/she may be dismissed ?.

In the case of Iarnród Éireann/Irish Rail V McKelvey [2018] IECA 346 the Court of Appeal enunciated the following principles in respect of fair procedures that should be afforded to an employee.

“(i) [the] right to know the nature of the complaint/allegation made against him;

(ii) [the] right to know the procedure to be followed in the course of the investigation;

(iii) [the] right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;

(iv) [the] right to be heard in relation to the complaint/allegation and to make representations in relation thereto;

(v) [the] right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;

(vi) [the] right to call witnesses in support of his stated position.

In the Supreme Court Justice Charlton helpfully stated the following: 

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal. In Connolly v McConnell [1983] IR 172, a basic approach to disciplinary proceedings was set as requiring that employers must not remove an employee “without first according to him natural justice.” Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her].” Hence, there should be as full an investigation of the relevant events as is reasonable in the circumstances before disciplinary action is taken, the employee should be notified of this so as to enable an answer to be given by him or her and to have the matter impartially decided”.

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