Wrongful dismissal and unfair dismissal are huge problems for businesses. The number of cases in the WRC and Labours court increase each year. Below, we provide Employers with a short guide of Do’s and Don’ts when it comes to following the disciplinary procedure. We explain the steps necessary to handle employee misconduct.

After issuing a sanction, you should provide your employee with an opportunity to improve their performance and/or conduct. This would be considered ‘best practice.’ You can give feedback, implement a performance improvement plan, organise more training/shadowing to name a few.

Afterwards, if there is still no improvement, you can bring the employee through the disciplinary procedure again.

Depending on the issues you are dealing with, it can take in excess of one year to terminate a permanent employee by exhausting the disciplinary procedures as outlined in your Employee Handbook.

By offering support and guidance initially, you can help avoid a dismissal process, external resources expenses and other unpleasant factors.

You should ensure the following is adhered to;

• Invite the employee to an investigation/disciplinary meeting through a letter of invite
• Provide the employee with the appropriate notice of same
• Send the employee the investigation/disciplinary procedures in advance
• Allow the employee to bring a representative
• Record the meeting i.e. minute taker
• Follow the Company’s disciplinary procedure as outlined in the Employee Handbook
• Present the evidence to the employee prior to meeting
• Right to appeal the disciplinary outcome

These principles should always be applied.

More info here.

Each employee case will be different and should be judged on their own merits. Therefore, you should liaise with your HR Advisor before taking any action.

In our experience, oftentimes the decision to terminate is made too quickly. This will leave the Company exposed to wrongful and unfair dismissal.

Depending on the issues you are experiencing, you may need to exhaust your disciplinary procedure before dismissing an employee. This means you will need to issue them with a verbal warning, first written warning, final written warning, suspension and then termination. However, Company handbooks can vary. It is important that you follow the procedures as outlined in your own handbook.

You should give your employee feedback. Be empathetic and ensure sure his or her behaviour is not associated with external issues such as family problems or co-workers. If your informal approach is not effective, you can then proceed to bring the employee through the disciplinary procedure.

A verbal warning should be issued in writing. It is the first warning that can be received, depending on the seriousness of the incident. A record of this verbal warning will be kept on the employee’s personnel file for a six/twelve-month period and will be disregarded after that, if satisfactory improvement is shown.

If there is failure to improve on previous warning or if an additional or more serious breach occurs, a first written warning will be issued.  A record of this written warning will be kept on the employee’s personnel file for a twelve-month period and will be disregarded after that, if satisfactory improvement is shown.

If the employee fail to improve on previous warnings or if an additional or more serious breach occurs a final written warning will be issued.  A record of this written warning will be kept on the employee’s personnel file for a twelve-month period and will be disregarded after that, if satisfactory improvement is shown.

Still, if there is no improvement on previous warnings or if an additional or more serious breach occurs, the employee will be suspended with or without pay.  During any period of suspension, an employee is expected to seriously consider their future with the Company. A record of this suspension will be kept on the employee’s personnel file for a twelve-month period and will be eliminated after that, in case there is improvement.

Depending on the seriousness of the matter, an employee may be suspended without pay at the Written Warning stage of the procedure.

These failures to improve on previous warnings or additional or more serious breach occurs or for gross misconduct an employee will be liable to be dismissed.

In the extreme circumstances of gross misconduct, as outlined above, an employee will be suspended pending a full investigation of the matter(s). If, after investigation, the case is proven, then the employee’s employment will be terminated without previous warning.

If the decision is to dismiss, the employee should be provided with a letter stating the reasons for termination of employment, the length of employment, the length of notice (whether this will be worked or whether there will be payment in lieu) and the effective date of termination. Furthermore, the letter must include details of the employee’s right of appeal and must be issued within two weeks of the dismissal.

Depending on the level of the offence the previous stages of the disciplinary procedure may be bypassed.

If you are in a supervisory or Managerial position, perhaps lowering the employee position may be considered as an alternative to dismissal except in cases of gross misconduct.

In case of minor and gross misconduct the rules are applied in a different way, learn more on our article

We can support your business navigate the disciplinary process. Book your free consultation with us!