The question we are often asked by an employee who is fearful of imminent dismissal is “Can my employer do this?” On the other hand we are often asked by an employer “How can I legally dismiss an employee” The answer to both questions will always come down to fair procedures. We cannot prevent an employer from dismissing an employee nor can we prevent an employee bringing a complaint to the Workplace Relations Commission (“WRC”). However whether the employee or employer will succeed before the WRC is another question, and again it will all revolve around fair procedures.
A written copy of the procedure which an employer will observe before dismissing an employee i.e. a Disciplinary Procedure must be given to the employee within 28 days of the employee commencing employment. A Disciplinary Procedure should clearly outline the steps to be followed when a disciplinary matter is being investigated, as well as the disciplinary action which might be taken against the employee.
If there is a lack of fair procedures it will be the employer who will ultimately pay the price should the employee subsequently file a complaint with the WRC. We have seen situations where the employer was justified in dismissing the employee, sometimes for quite serious misbehaviour, but the failure on the part of the employer to act fairly and reasonably, and in accordance with their own procedure resulted in the employee succeeding with a subsequent complaint for unfair dismissal.
Dismissals must be reasonable and cannot be disproportionate to the “employment crime”; for example if an employer dismisses an employee because they are late to work one morning, this would be seen as disproportionate and unreasonable. However if that same employee had been late several mornings over a period of time, and had previously been through the disciplinary procedure and issued with verbal, written and final written warnings for tardiness, then a dismissal in those circumstances would be seen to be more reasonable.
Generally speaking the stages in the disciplinary procedure will be progressive and only as a last resort should dismissal be considered. However, if the disciplinary matter is of a more serious nature, and if it is provided for in the Disciplinary Procedure, the employer may skip some or all of the stages and impose a more serious sanction. If an employer wishes to rely on dismissing an employee for gross misconduct, then they must also provide in the Disciplinary Procedure the right to summarily dismiss an employee. I cannot stress enough how important it is that fair procedures are followed, even where there is clear evidence of gross misconduct on the part of the employee.
An employee must file a complaint for unfair dismissal within 6 months of being dismissed. This can be extended up to 12 months but only in exceptional circumstances. An employee must try and mitigate their losses by seeking other employment, and evidence of this will be sought when the matter comes before the WRC. The compensation that can be awarded is for financial loss only. Compensation will not be awarded for the unfairness, any embarrassment and/or reputational damage caused to the employee.
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