Disciplinary Procedures & Unfair Dismissal
If an employer is of the view that the bond of trust which is fundamental to the employment contractual relationship has broken down, due to Conduct of the employee, it is nevertheless crucially important that Disciplinary Procedures are employed fairly by them prior to the date of dismissal.
Section 6 of the Unfair Dismissal Act 1997(as amended) states that that the dismissal of an employee will Not be an unfair dismissal, if it’s as a consequence of Conduct of the employee.
If an employer is of the view that the employees conduct in question is simply unacceptable, and trust between the parties has broken down, an employee nevertheless has a constitutional right to fair procedures.
In Re Haughey (1971) I.R.217 – it was stated that Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures.
The Supreme Court in the case of Glover V BLN ltd 1973 I.R. 388 – implied the principles enshrined in Re Haughey into Employment Contracts of employees in Ireland.
Therefore, each employee has the right to fair disciplinary procedures being employed by their employer as they have a right to natural justice under law.
Investigation meetings / hearings or disciplinary procedures should be conducted fairly.
The disciplinary procedure the employer conducts does not have to be perfect, but did the employer react fairly to the employees conduct, is a question that will be asked and assessed in an unfair dismissal case, which includes an assessment of any Disciplinary Procedure implemented. By not conducting a disciplinary procedure, or by not employing a fair disciplinary procedure, a charge may be put to the employer that they contravened an employee’s constitutional right to fair procedures and natural justice.
If an employee is dismissed after a disciplinary procedure process, and is not afforded with a right of appeal, the employee may claim that they were denied the right to natural justice by being refused, or not provided with a right of appeal to a dismissal sanction.
We can get guidance from the Glover case mentioned-above regarding what basic fundamental requirements of fair procedures are, in which it was stated:
There are certain fundamental requirements of fair procedures as outlined in Glover v BLN Ltd  IR 388 which it was stated:
“cannot be dispensed with, regardless of the particular circumstances that arise in an individual disciplinary matter. They include:
(i) the requirement to make the employees who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;
(ii) (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process;
(iii) and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”
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