First published: February 25th 2020
Last updated: June 20th 2023
As an employer, you’ll understand that no two days are the same. One day brings an exciting new business opportunity, the next an unexpected employee issue.
Employee issues can test your patience as well as your management capabilities. The list of challenging employee issues range from long-term sickness and poor performance to handling maternity leave or dismissing an employee correctly.
The proper management of a dismissal process is something employers commonly get wrong. The key thing to consider before terminating any contract of employment is to ensure the employee receives an opportunity to present their side of the story.
This area of HR is better known as the law around unfair dismissals.
Fair procedures in Ireland
Unfair dismissals law in Ireland is underpinned by legal principles known as natural justice and fair procedures.
These core legal principles date back to Roman times. The Romans believed that certain legal principles were so self-evident that they didn’t need to be enshrined in statute.
The first rule is known as “nemo iudex in causa sua” which means that no person can act as judge in a case in which they have an interest. In practice, this means an independent person should carry out the investigation and disciplinary processes into any alleged employee ill-discipline.
To comply with fair procedures, investigators should have no direct management responsibility for the department within which the alleged ill-discipline occurred. And generally speaking, the more serious the incident, the more independent the investigation team needs to be.
A literal translation of the second rule of “audi alteram partem” is “hear the other side too”.
In practice, this means that no employee should be judged without first receiving a fair hearing at which both sides have an opportunity to respond to any evidence produced against them.
WRC Code of Practice guidance on fair procedures
Under the Workplace Relations Commission’s Code of Practice on Grievance and Disciplinary Procedures, disciplinary procedures should comply with the general principles of natural justice and fair procedures.
Any such process should ensure:
- 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, circumstances.
- That the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available
Non-compliance with fair procedures
All too often, we see employers who dismiss a member of staff without affording the employee their fundamental right to fair procedures.
Jumping the gun can result in having to defend an unfair dismissal claim in the Workplace Relations Commission. If an employee is successful with such a claim, they may be awarded up to two years’ remuneration in compensation.
So the next time an employee steps out of line, make sure you hear them out before confirming your initial reaction to dismiss. Dismiss in haste, repent at leisure.
Expert HR advice on fair procedures and unfair dismissals
Speak to one of our HR experts today on 1800 719 216 for instant advice on unfair dismissals and fair procedures.
You can also download our free Unfair Dismissal guide.
