by Guest Caroline Browne Managing Director of the (HRP Group)
In my professional life, I have reviewed countless cases were an employer has taken the view that a particular employee, who has been subject to dismissal from a company, for one issue or another, was subject to fair process and therefore should not have any reason to take a case. They are then taken by complete surprise when a Rights Commissioner (RC) or Employment Appeals Tribunal (EAT) letter arrives confirming that a case has been taken against them by the disgruntled employee.
On further investigation of the facts, in many cases, even in cases where dismissal is clearly warranted, it becomes clear that the correct procedure was not followed thereby, exposing the employer to potential sanction, usually in the form of monetary compensation which can be significant (up to two years remuneration) by the relevant authority not to mention to additional time and cost of defending such a case.
There is an onus on employers large and small (excuses that an employer is an SME and cannot be expected to understand or follow the requirements of the law, fall hallow on the ears of Tribunal members) to ensure they follow a clearly established disciplinary process and what is commonly referred to as the “principles of natural justice”.
Apart from cases of constructive dismissal, where an employee terminates their own contract of employment, due to what they believe to be the unreasonable conduct of their employer, all dismissals are presumed to be automatically unfair unless the employer can show substantial grounds to justify it. So, if an employee decides to bring a claim of unfair dismissal, the employer must not only prove that the dismissal was indeed a fair one, but in addition that fair procedures were fully and completely followed to reach the conclusion that dismissal is fair in such circumstances.
Therefore, I set out in this article, a number of key areas that employers should take into account if you are faced which such circumstances in your own workplace.
Firstly, as a general rule, an employee who decides they have been unfairly dismissed must have at least 12 months service to bring a claim. They should bring their claim within 6 months of the dismissal (in limited circumstances this can be extended to 12 months). Submitting a case under the current system (this is currently under review, but that is another article!), is a free and relatively easy procedure for an employee to initiate, so it is imperative to mitigate against such cases by ensuring that your processes stand up to such scrutiny.
There are a number of limited grounds on which a dismissal can be justified by the employer as fair dismissals.
A further consideration is that any disciplinary procedure must comply with what are referred to as the “principles of natural justice” which are enshrined, but not specified, in the Irish constitution. In addition, the requirement for clear procedures are set out in part 3 of S.I. NO. 146 of 2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.
Along with the set disciplinary procedures, these principles should be the corner stone of any disciplinary process.
It is therefore essential that an employer has a formal disciplinary procedure in place (a copy of such should be given to the employee at the start of any process) in additional this can easily be found by the employee in their handbook or through an intranet HR system. All employees should receive this by law as part of their terms and conditions of employment upon commencement.
This procedure is your roadmap, as it sets out the key procedures that will be followed and ensures fairness and consistency in its application.
Even in cases where the grounds for fair dismissal, as set out above, are completely met, the employee must still be subject to “due process” which should be closely followed.
Having set out some of the major considerations employers need to take account of when faced with a potential dismissal in this article, finally it is important to note that it is essential that managers (or whoever may be responsible for initiating and overseeing such a process) are fully aware of and briefed on the company disciplinary procedures, along with some of the core principles I have set out in this article, to ensure you stay on the right side of any potential Tribunal claim and indeed perhaps ensuring you don’t end up there at all!
This article is original content and was written exclusively for CareerWise Recruitment by Caroline Browne Managing Director of the HRP Group, a leading Human Resources consultancy practice www.hrpgroup.ie.
Joe Robbins is co-founder of CareerWise Recruitment. A graduate of the University of Limerick (Degree in Business Studies, 1985), Joe worked in the UK for five years where he specialised in materials management, production management and plant management for a number of companies.
He returned to Ireland in 1992 to become Operations Manager for a Cork-based start-up, FMC Automotive Division which was subsequently taken over by Snap-on Equipment. Joe managed the business re-location of this company to Shannon in 1997 before setting up CareerWise Recruitment in 1999.
He is a committee member of the Chartered Institute of Personnel and Development (CIPD) Mid-West region, and a former Director and Vice President of the Shannon Chamber of Commerce. Joe is former Chairperson of the Sixmilebridge Camogie Club and current Chairperson of the Clare County Camogie Board.
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