Employment law explainer: What are fair procedures?

Ian Henderson

February 25 2020

As an employer, you’ll understand that no two days are the same. Where one day brings an exciting development, the next could bring an unexpected employee issue.

Employee issues can test your patience as well as your management prowess. The list of challenging employee issues can range from long-term sickness and poor performance to handling maternity leave or dismissing an employee correctly.

This last area of dismissal is one that routinely frustrates employers. The key thing to know is that before you terminate a contract of employment, you must ensure the employee receives an opportunity to present their side of the story.

This key area of HR is broadly known as unfair dismissals law.  

Fair procedures

Unfair dismissals law 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.

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.

Getting it wrong

All too often, we see employers who hastily 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.

Need our help?

If you would like further complimentary advice on unfair dismissal from an expert, our advisors are ready to take your call any time day or night. Call us on 1890 252 923 or request a callback here.

Keep dismissal guidelines close by downloading our free Unfair Dismissal guide.

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