If an employee is dismissed for a conduct issue, or performance issue, for example, and no investigation took place, or no disciplinary hearing took place, or an unfair investigation / disciplinary hearing took place, an employee will likely feel the dismissal was unfair and consider their legal options.
Many employees will indicate to their solicitor, the dismissal was predetermined from the outset, that they never got a fair crack of the whip in terms of the investigation or disciplinary process. In essence, an employer made their mind up regarding the employees position at a particular point in time, and the subsequent internal processes were biased with the result inevitable.
A dispute then arises whereby an employer contends fairness was pervasive throughout the investigation/disciplinary process and the employee contends the opposite arose, and the employer just wanted them out from the process start.
If an employer dismisses an employee, it is for the employer to show that the dismissal was fair, the procedures adopted by them prior to the date of dismissal were conducted fairly and that there were substantial grounds for the dismissal. The burden of proof is on the employer in an unfair dismissal case taken.
Employers should furnish to employees within 28 days of employment documents regarding company procedures regarding investigations and disciplinary processes.
If an employee is dismissed, the employer must, if requested by the employee, explain in writing the grounds for the dismissal.
Employees have a constitutional right to basic fairness of procedures and this right is implied into their employment contract.
In G. V BLN Ltd it was stated that with respect to a disciplinary procedure, there was an implied term of the employment agreement that any enquiry held should be conducted fairly.
The above case indicated helpful fundamental requirements of fair procedures to include the following, namely:
- That the employee must be made aware of the allegations made against him/her.
- An employer should follow their published disciplinary procedure regarding the employee in question.
- If an employer upholds an allegation against the employee, then the disciplinary sanction imposed should be proportionate to the conduct in question.
Investigation invitation letters should provide sufficient detail so the employee can understand the allegations before them. If an employee is not provided with sufficient information in advance regarding an investigation meeting, they cannot then prepare for the meeting and the employee may contend natural justice and fairness did not arise. If an investigation meeting is due to take place, employees should be afforded with the opportunity to prepare for them properly.
The Code of Practice on Grievance and Disciplinary Procedures Order 2000, which can be found online, is a very helpful guide for both employees and employers alike, as it lays out general principles regarding how to deal with grievance and disciplinary issues in the workplace, which if followed, would reduce workplace disputes.
The Labour Relations Commission also have a useful Grievance and Disciplinary Procedures guide employers and employees alike can follow.
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.
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.
8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.