Posted on 16th February 2018 at 16:02
I have recently been looking at the Determinations delivered by the Labour Court and it is amazing how many employers, even where they have a good case for dismissal, have had awards made against them because of their lack of fair procedures. Attached to this blog is a list setting out what an employer must do before they can successfully defend a claim for unfair dismissal. Equally, employees threatened with disciplinary proceedings are fully entitled to insist on these procedures being followed in order that they have a fair opportunity to respond to the allegations made against them. On my observations, at least 50% of unfair dismissal claims are settled or are found against the employer because of their lack of fair procedures. It is essential that these be complied with, and at Marcus Lynch we can assist you in all employment litigation.
Procedures to be followed by SME’s when the conduct of the employee if proven may result in dismissal
Where a question of unfair dismissal is in issue, there are certain procedures which must be established to support the decision to terminate employment for misconduct.
1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. A copy of the complaint in writing together with any other statements and any other relevant documentation taken should be furnished to the employee prior to any investigation
2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. In smaller companies where the Complainant may be the sole Manager, it is desirable that an outside person (probably with expertise in employment law) be brought in to investigate the complaint. Failure to do so may not however be fatal particularly if the conduct is egregious.
3. The employee should be advised of his right to representation. If dismissal is contemplated he should be so informed. There are conflicting views as to whether an employee is entitled to legal representation but if dismissal is contemplated then it probably wise to allow legal representation if the employees wishes. He should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority who ideally should be at a level below CEO should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
6. The employee should be advised of his right to appeal if this is possible. In smaller firms it may not be. Employers should again give consideration as to whether an outside person (not the person or persons who conducted the investigation) should be designated as the appellant.
Put very simply, principles of natural justice must be unequivocally applied.
It may be impossible or too costly for a small employer to employ all these procedures. However they must be borne in mind and followed as far as humanly possible. Failure to do so may result in a successful claim for unfair dismissal.
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