EMPLOYMENT LAW

 EMPLOYMENT LAW

Dismissal for Misconduct: Avoiding the Pitfalls

Employers are entitled to dismiss workers who are guilty of misconduct but, surprisingly, a large number of employers have rulings made by the Workers Relations Commission (WRC) ordering compensation be paid to their employees because they failed to follow set procedures for the proper dismissal for misconduct. These errors by employers can be avoided.

The principle of Fair Procedures is where many employers fail.

Where an incident of misconduct arises, the employer should carry out an investigation of the incident or incidents. The purpose of the investigation is to establish the facts. The employee who is the subject of the investigation must be invited to an interview to give their version of events.

The Investigation Process

The first matter to be decided on is who conducts the investigation. To avoid being challenged later, careful consideration should be given to this. A suggestion would be to ask your solicitor to fulfil this role.

The employee who is the subject of the complaint is entitled by law to be represented by a solicitor, union representative or just a friend or work colleague. A timeline should be set to investigate and conclude the investigation. In any subsequent legal proceedings or appearance before the WRC, these procedures will be scrutinised, so it is vital that a properly conducted investigation has been carried out beforehand.

The person conducting the investigation will:

·       Explain the process and reason for the investigation.

·       Inform the worker of the complaint being made against him/her.

·       Seek cooperation in confidentiality of the process from the parties involved.

·       Agree terms of reference with the employer and worker.

·       Acknowledge the right of representation of the worker.

·       Interview all parties involved and or witnesses.

·       Examine any documentation relevant.

·       Take minutes of all meetings of the investigation.

·       Write a report with a conclusion to the investigation and give a copy to the employer and worker.

Follow these steps and a subsequent claim for unfair dismissal on grounds that Fair Procedures were not followed will very likely fail.

A critically important detail is the choice of the investigator. That person must be fair and impartial so they cannot have had

any previous dealings with the worker where it may be claimed the investigator was biased.

If the outcome of the investigation finds in favour of the employer, the employer then can decide to discipline the worker or in cases

of serious misconduct, dismiss the employee. But the employer must give the worker the right of appeal first. This must be in

writing with a set time limit.

Dismissing an employee can be very costly for a company and especially a small company, so it would be prudent to seek the advice of your solicitor

such a move will be money well spent.