Sometimes workplace dismissals arise where the dismissal occurs in an instant.
There is an immediacy about the act regarding the dismissal.
The employee has had no advance warning of the dismissal or did not consider it could occur.
Employees have a constitutional right to fair procedures, so if an employee is aggrieved about an incident at work, the employee is nevertheless still entitled to an investigation to determine the outcome of the investigation, for example.
This type of dismissal can be described as a Pre-emptory Dismissal and this post will give you helpful information to understand the onus of proof in unfair dismissal cases is on the employer and this post gives a case example where the court held the person must have a ‘’fair opportunity to advance a defence’’.
If you have any questions about unfair dismissal we will endeavour to answer any questions you have.
What is a Preemptory Dismissal ?
Preemptory in the dictionary is described as:
- Insisting on immediate attention or obedience, especially in a brusquely imperious way.
It means something that is not open to challenge or appeal. It has a finality to it.
Sometimes what happens in work environments is an employer sees conduct of an employee and gets annoyed.
The employer considers the employee breached company policies and makes a decisive decision there and then that the trust is gone, confidence is lost, and a dismissal is warranted arising from the act or omission of the employee which led the employer to this conclusion.
It would be prudent for an employer to take a step back in this scenario and follow the Investigation stage process and Disciplinary stage process.
We have seen cases where the employer fails to follow their own disciplinary process documented by them, and the employee rightly claims the procedures adopted by the employer were unfair, and takes a case for unfair dismissal.
At the heart of this problem seems to be the decision making of the employer when presented with the alleged conduct of the employee falling below par.
The decision to dismiss an employee should be reasonable and proportionate to the conduct in question. Many times employers get this wrong and expose themselves to liability.
Dismissing an employee after many warnings is different to dismissing an employee for a one of event, which may not be as bad on reflection as the employer thinks in the moment.
Dismissal by Reason of Employee Conduct
The law states:
‘’The dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee’’.
Many employers are of the view the focus in these cases will be on the conduct of the employee, or what the employee did to warrant a dismissal.
The law demands the Adjudication officer assess the conduct of the employer in terms of the dismissal.
In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so– (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.
The Adjudication officer will examine if the Investigation carried out by the employer was thorough and fair.
Whenever the employer dismisses an employee for a conduct failure, the employer must have carried out an investigation which affords the employee natural justice and fairness in this process.
Some employers are of the view that when the conduct of the employee is a serious breach of company policies, procedures such as the Investigation Stage and Disciplinary Stage do not have to be adopted with the same vigour as they would apply to problematic employee conduct of a more minor nature.
The onus is on the employer to show and prove the investigation process was fairly done.
If an employer short-changes an employee in terms of the procedural aspects prior to dismissal, it is likely an unfair dismissal finding will arise.
In case UDD1735 it was stated:
‘The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’
In the Labour Court Recommendation UDD 198 it was stated inter alia:
- “The Complainant’s case is that his dismissal was unfair as the decision to dismiss him does not meet the standard for fair procedure set out in the case law cited. The Respondent disputes that the dismissal was unfair and argues that that there is no requirement for the process to be perfect. Any errors that may have occurred in the process were minor. The Court does not dispute the fact that the process does not have to be flawless however, in this case a number of issues have been highlighted which in the Court’s opinion go to the heart of the Complainant’s ability to answer the charges being laid against him. In particular, the failure to provide him with all documentation being relied on by the decision makers at the various stages of the process and the failure to provide him with some of the allegations in advance of the investigation into same.
Onus of Proof on Employer
The onus of proof in unfair dismissal cases is on the employer to show there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.
The Adjudication officer will assess if the employer’s response to the employees conduct satisfies the band of reasonable responses legal test.
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.
Employment Law Articles
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- Bullying at the Workplace
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- Deduction from Wages – Employment Law
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