Unfair dismissal, Fair procedure and Natural Justice
In this article we examine how the rules of natural justice must be applied in all employment law issues,. This is especially true when setting up and implementing disciplinary procedures. If the procedures follwed are not fair, then any dismissal following from them is unfair.Under the Unfair Dismissal Acts 1997 - 2001 all dismissals are deemed to be unfair until shown to be fair.
The Acts list the following grounds as being fair:
- Contravening the law
- Other substantial groundsThe Code of Practice on Grievance and Disciplinary Procedures (S. I. 146 of 2000) sets out the principles of fair procedures for employers and employees. It contains general guidelines on how to apply grievance and disciplinary procedures. The Code of practice is not legally binding, but adherence to it is an excellent way to protect employment rights.
Code of Practice, Labour Relations Commission Grievance and Disciplinary Procedure, Download here
What are the principles of natural justice?
The principals of natural justice are rights to which every person in Ireland is entitled. The Code of Practice on Grievance and Disciplinary Procedures applies them to a workplace setting.
They incorporate the following:
• that employee grievances are fairly examined and processed;
• that details of any allegations or complaints are put to the employee concerned:
• that the employee concerned is given the opportunity to respond fully to any such allegations or complaints:
• that the employee concerned is given the opportunity to avail of the right to be represented during the procedure:
• that the employee concerned has the right to a fair and impartial determination of the issues concerned,taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.
The most common reason for unfair dismissal awards arises from failure to follow the rules of fair procedures and natural justice. It is a requirement that complaints or allegations are made in writing and the source of the disputed action be made known to the employee in sufficient time to allow the accused prepare for the disciplinary meeting. The seriousness of the meeting must be brought to the attention of the employee concerned. The accused employee must then be afforded an opportunity to challenge and question witnesses. The code of practice recommends that an accused employee should be allowed to be represented by a person from a registered trade union or a colleague of the accused employee's choice.
Last chance saloon
A disciplinary meeting should only be held when other methods have been tried without success.
Where any work related deficiency is observed, the matter should be addressed by way of coaching and support to afford the employee an opportunity to rectify their behaviour.
Was the sanction too much?
The expression “ Using a sledge hammer to crack a nut” springs to mind here.
The disciplinary procedures should follow an increasing path of seriousness. The disciplinary method usually goes from oral warning, to written warning, final written warning and when all else fails, dismissal. Time limits and supports should be strictly applied. There may be an occasion on which dismissal is warranted, however great care must be taken before coming to that decision. Where possible the advice of an experienced, independent employment law expert should be obtained.
See article on workplace investigations here
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Image courtesy Boston Public Library