Discipline

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Discipline Dismissal
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Preliminary Requirements

• In order to bring an action for unfair dismissal
  a claimant must satisfy certain preliminary
  requirements the most important of which is
• Continuous Service

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Continuous Service cont.An anti-abuse clause
introduced by the 1993 Amendment means that where
new fixed-term or specified purpose contracts are
renewed within 3 months of prior contracts for
the purpose of trying to avoid the provisions of
the UDA legislation, continuity of employment
will not be broken.

• Absence while on statutory maternity leave will
  not break continuous service
• Transfer of a business or part of a business,
  where the employee is employed by the new
  employer will not be considered to have broken
  service. If a redundancy payment has been
  received, continuous service will be deemed to be
  broken.
• The dismissal of an employee followed by their
  re-employment within 26 weeks shall not serve to
  break continuity of employment where termination
  was designed to avoid liability under the Act

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Important issues

• Employees who are able to satisfy the preliminary
  requirements set out above may still not be able
  to bring legitimate claims if they cannot satisfy
  the Tribunal on each of the following points
• (a) That they worked under a contract of service
  (i.e. they were employees and not independent
  agents in business on their own account)
• (b) That a dismissal did, in fact, take place.

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• (a) Was the claimant employed?
• In order to bring a claim, the claimant must be
  able to establish that they are employees. An
  employee is a person who has entered into or
  works under a contract as a contract of
  services, or of apprenticeship, whether expressed
  or implied, oral or in writing.
• The question the Courts or Tribunal will ask
  include the following
• Does the employer control the employee in that
  he/she has the right to decide how, when and
  where the work is performed?
• How is the work supervised?
• How is the worker paid - by PAYE or on receipt of
  invoice?
• Who provides the tools and equipment?

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• (b) Was the claimant dismissed?
• In order to bring a claim for unfair dismissal,
  the claimant must establish that a dismissal has
  occurred.
• Constructive dismissal - A constructive dismissal
  will occur where the claimant terminates a
  contract of employment in circumstances in which,
  because of the employers conduct, either the
  claimant was entitled to terminate the contract
  without notice, or it was reasonable for the
  employee so to terminate it. The question of
  constructive dismissal must therefore be
  considered under two headings

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• How the Act works
• Once the preliminary points have been disposed
  of the Tribunal must consider the fairness or
  otherwise of the dismissal. It works on the
  premise that all dismissals are deemed unfair,
  until proved otherwise. The onus therefore is on
  the employer to prove otherwise.
• The fairness of a dismissal is judged by the
  objective standard of the reasonable employer
• Procedural fairness, i.e. natural justice in
  dismissal cases includes the following
• The right to know the reasons for the proposed
  dismissal
• The right to reply to those reasons and have that
  reply and any other arguments or submissions made
  before the decision to dismiss is taken
• The right to be represented by an appropriate
  person so that the right to reply is real
• the right to an impartial hearing

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• If an employer is not able to show that these
  general principles have been adhered to it will
  be very difficult to justify the dismissal - no
  matter how compelling the evidence leading to the
  dismissal may be.
• On a more specific level, and in deciding the
  issue of whether the dismissal was unfair, the
  EAT may look at
• The reasonableness of the employers conduct in
  relation to the dismissal
• His/her compliance or otherwise with a
  disciplinary procedure (it is important to note
  that an employer is obliged to detail the
  procedure which he/she will observe in the event
  of dismissal within 28 days of employing a new
  member of staff.

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The dismissal will be deemed unfair in the
following instances

• Trade Union membership
• Pregnancy or related matters
• If motivated or characterised by 9 unlawful areas
• Taking legal proceedings
• Solely as a result of taking Carers Leave

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Principles of Natural Justice

• Right to know the nature of the allegations made
  against you
• Fair and impartial hearing
• Opportunity to state your case
• Representation
• The right of Appeal

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The following procedures should be adhered to

• Investigate fully/prepare thoroughly
• State the reason for meeting in advance
• State right to representation in advance
• Outline offence/departure from standards
• Ask for explanation/employees case
• Ask questions/clarify
• Adjourn to consider position

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Procedures (cont)

• Choose appropriate sanction
• Define action and explain reason for action
• Seek commitment to improve
• Outline consequences of failure to improve
• Set review date
• Explain appeals procedure
• Confirm in writing

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General Advice

• Act/Intervene early
• Establish all the facts
• Know the rules
• Check precedents
• Consult with superiors/colleagues
• Be specific re offence
• Be consistent
• Reprimand in private
• Keep records

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• Always remember
• Dismissal is the last remedy of redress and as
  such it should normally have been preceded by
  warning and it should always have been preceded
  by a thorough and impartial investigation.