EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT - Key Considerations for Managing Discipline in Workplac
The following legislation should be considered when looking at what constitutes a fair dismissal;
Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 - The Code of Practice on Grievance and Disciplinary procedures sets out principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair. It also promotes that an Employees shortcomings, whether they are conduct, attendance or performance related, be brought to the Employee’s attention informally in the first instance, provided that this is appropriate.
Industrial Relations Acts, 1946 – 2015 – In comparison to the Unfair Dismissals Act that is details above, the Employee does not need a specific service requirement in order to take a claim to the WRC under the Industrial Relations Acts. This is a prime piece of legislation that is utilised by Employees who feel they are unfairly dismissed whilst still in their probation period or within the first 12 months of their service.
The Employment Equality Acts, 1998 – 2015 - Set out that no person should be dismissed due to their gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, or membership of the Traveller community. Such a dismissal is referred to as a discriminatory dismissal. There is no service requirement for an Employee to be covered by the Employment Equality Acts.
The aim of the disciplinary procedure should always be to correct and address any concerns which arise. Whether the Employer is addressing poor performance, conduct or attendance, the purpose of the procedure in the first instance is to encourage and facilitate an improvement in the shortcomings identified. However, where this fails to resolve a situation or this approach is deemed inappropriate given the circumstances, the disciplinary procedure may lead to formal disciplinary action and indeed the dismissal of an Employee.
The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:
Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.
In some situations, the Employer may commence the procedure at the final stage, i.e. dismissal. This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned.
It is a requirement of the Unfair Dismissals Acts that every Employee must be provided with a copy of their Employer’s disciplinary procedure not later than 28 days following commencement of employment. A failure to comply with this requirement may weaken an Employers case where they are required to justify a dismissal.
A disciplinary procedure should also have an appeals mechanism as per the Code of Practice which should be consistently applied. It is preferable that the Manager hearing the appeal has not been involved in the initial disciplinary in any way as it may affect the right to natural justice.
- The Unfair Dismissals Acts, 1977 - 2015
- Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000
- Industrial Relations Acts, 1946 - 2015
- The Employment Equality Acts, 1998 – 2015.
Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 - The Code of Practice on Grievance and Disciplinary procedures sets out principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any dismissal being deemed to be procedurally unfair. It also promotes that an Employees shortcomings, whether they are conduct, attendance or performance related, be brought to the Employee’s attention informally in the first instance, provided that this is appropriate.
Industrial Relations Acts, 1946 – 2015 – In comparison to the Unfair Dismissals Act that is details above, the Employee does not need a specific service requirement in order to take a claim to the WRC under the Industrial Relations Acts. This is a prime piece of legislation that is utilised by Employees who feel they are unfairly dismissed whilst still in their probation period or within the first 12 months of their service.
The Employment Equality Acts, 1998 – 2015 - Set out that no person should be dismissed due to their gender (including pregnancy), civil status, family status, age, sexual orientation, disability, race, religion, or membership of the Traveller community. Such a dismissal is referred to as a discriminatory dismissal. There is no service requirement for an Employee to be covered by the Employment Equality Acts.
The aim of the disciplinary procedure should always be to correct and address any concerns which arise. Whether the Employer is addressing poor performance, conduct or attendance, the purpose of the procedure in the first instance is to encourage and facilitate an improvement in the shortcomings identified. However, where this fails to resolve a situation or this approach is deemed inappropriate given the circumstances, the disciplinary procedure may lead to formal disciplinary action and indeed the dismissal of an Employee.
The Code of Practice requires that the disciplinary procedure be applied progressively where appropriate, and that greater sanctions may be imposed over time. Therefore, every disciplinary procedure is required to have a number of steps, as outlined here:
- Informal Pre-Disciplinary,
- Verbal Warning (always to be confirmed to the Employee and recorded in writing),
- First Written Warning,
- Final Written Warning,
- Dismissal.
Where the situation arises that the Employer wishes to skip steps of the procedure, care must be taken to ensure that a) this is being done consistently with previous situations of a similar nature and b) that the Employee could reasonably have been expected to know that the issue was so serious as to warrant the Employer skipping steps in the procedure.
In some situations, the Employer may commence the procedure at the final stage, i.e. dismissal. This would generally only occur in cases of gross misconduct, and a fair disciplinary hearing must always be held before deciding to dismiss for the offence concerned.
It is a requirement of the Unfair Dismissals Acts that every Employee must be provided with a copy of their Employer’s disciplinary procedure not later than 28 days following commencement of employment. A failure to comply with this requirement may weaken an Employers case where they are required to justify a dismissal.
A disciplinary procedure should also have an appeals mechanism as per the Code of Practice which should be consistently applied. It is preferable that the Manager hearing the appeal has not been involved in the initial disciplinary in any way as it may affect the right to natural justice.
