Sometimes employers in Ireland are of the view that when they are satisfied an employee has engaged in a serious breach of conduct that contravenes the employment contract and the employees duty to the employer, the employer can eschew adopting proper procedures and imbuing fairness into the last of the employees tenure with the employer.
This is incorrect and employers can find themselves exposed to liability when this happens.
The law in Ireland regarding Unfair Dismissal is clear.
The dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Many employers don’t seem to know that it is their duty once a case commences, to show that the decision to dismiss was fair, reasonable and procedural fairness was applied by them to the employee prior to dismissal.
The burden in these cases is on the employer in terms of the burden of proof. The employer is on the back foot from the start to show they had their house in order prior to the dismissal to avoid attracting liability. The decision to dismiss an employee should be fair, rational, proportionate to the conduct complained of, and fair impartial procedures should be afforded to the employee for best practice prior to the dismissal.
The Adjudicator/decision-maker will assess the reasonableness of the employers conduct or otherwise in relation to the dismissal. Sending an employee notification of a disciplinary meeting with a text is insufficient and arguably unreasonable.
What commonly occurs is an employer is aggrieved at an act of an employee, is satisfied he/she did wrong, but then reacts emotionally foregoing fairness regarding the dismissal process and leaving the employee aggrieved and seeking to invoke his/her legal rights.
If an employer is aggrieved at an act/omission of an employee, they should follow the following code of practice guidelines and their own disciplinary code of practice prior to any dismissal.
The above code of practice gives employers and employees alike guidance on applying grievance and disciplinary procedures in the workplace.
Some of the guidance notes in the code of practice are the following:
- Employees are entitled to having employers apply disciplinary measures in accordance with natural justice and fairness.
- Each disciplinary measure taken by an employer should be rational and fair. The employee should be given the reasons for the disciplinary action.
- The employee should be informed of the range of penalties that can be imposed and the appeal mechanism available.
- Details of any allegations against the employee should be put them in writing prior to the occurrence of a disciplinary meeting.
- The employee must be given the opportunity to respond to allegations.
- The employee has a right to an impartial determination of the matter by the employer.
- The employee should be afforded with the right of representation at disciplinary meetings.
The balance of power in employer-employee relations falls on the shoulders of the employer.
It is insufficient to text an employee about a disciplinary meeting occurring demanding their attendance. An employee is entitled to fairness in the process. An employer may be firmly of the view the employee did something wrong, but the employee is entitled to answer the charge, and the penalty to the charge should be proportionate or an employee may well succeed in their unfair dismissal action attaching legal liability to the employer.
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Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute. Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
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