Employees can legally challenge their dismissal or disciplinary action taken against them. If they do so we need to be able to demonstrate both that we had good cause for the action taken and that our process was fair. That means:
- An instance of serious misconduct (i.e. no warnings required) e.g. assault or unauthorised possession of Company property.
- Employee lacks the capacity for the job. e.g. employee lacks essential skills or expertise, (after training and support provided) .
- Repeated misconduct (after warnings).
- Persistent poor performance (after warnings).
- Redundancy (after consultation).
- Frustration of contract (after consultation). e.g. medical incapacity
- Misrepresentation (after investigation etc). e.g. falsely claiming essential qualifications or experience.
The overall test is “could a fair and reasonable employer have reached the same decision (as yours)?”.
In dealing with disciplinary cases, it is not only important for you to ensure that justice is done but also that it is seen to be done. Consider the following points:
We need to establish that the employee knew and understood the work rules or company policies/standards it is alleged they breached. This includes the disciplinary procedure.
We must inform the employee of the allegation which is to be investigated and advise them of the consequences if the allegation is sustained. We must ensure the employee has been provided with all information and evidence gathered during the investigation that may be relied on by the Company in determining the allegation.
We must promptly make all reasonable efforts to establish and confirm the facts.
We must offer the employee the opportunity to be represented or have another employee present as a witness.
Give the employee a real chance to explain or justify his/her actions before the decision is taken. This should involve adjourning the meeting for a period to enable the employee to consider his/her position. If new or additional evidence comes to light during the investigation the employee must be provided with this and given an opportunity to respond to it before any final decisions are made.
After the investigation is complete, which includes interviewing the employee concerned, we must give full consideration of the facts including the employee’s explanation.
If we conclude a breach has occurred we need, in deciding what action to take, to consider mitigating factors such as the employee’s work history, and the consistency with which rules have been applied in past cases.
We must spell out what action we are taking and why. This will involve clearly identifying to the employee the “gap” between his/her performance or behaviour as compared with expected requirements.
Burden and standard of proof
- The burden of proof rests on the employer. In other words we will need to show that it had good cause to take the action being challenged and that the procedure followed was fair.
- The standard of proof required is proof ‘on the balance of probabilities’ – NOT “beyond reasonable doubt”. This is a lesser standard than for a criminal hearing and allows us to decide which version of events was ‘most probable’ where evidence is conflicting.
- We will be judged on the reasonableness of its actions overall notwithstanding any small procedural weakness.
- The decision will be evaluated based on “what was in the employer’s mind” at the time of dismissal, based on complete investigation and reasonable interpretation of available facts.
- Ex post facto (discovered after the decision) evidence is not relevant to the decision if it is later examined in a grievance hearing i.e. we will be judged on what we knew when we made the decision to dismiss/warn.
- Participation in union activities.
- Taking legal proceedings against an employer.
- Colour, race, ethnic or national origin.
- Political opinion, family status, employment status, sexual orientation.
- Sex, marital status, religious/ethical belief or age.
- Disability (physical or intellectual).
- Pregnancy or intention to adopt a child.