Back to Basics – Disciplinary Procedure

It is no surprise that procedures are not always followed correctly during employment, and in some cases, they have been completely neglected, subsequently denying an employee of fair treatment. The crux of disciplinary procedures remains basic fairness. This raises the question: how do we define basic fairness?

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) states that the general principles of natural justice and fair procedures must include: 

• The employee is made fully aware of any formal allegation made against them.
• They are afforded the opportunity to respond fully to any such allegations or complaints.
• They are given the opportunity to avail of the right to be represented during the procedure.
• That the employee has the right to a fair examination, and impartial determination of the issues.
• The disciplinary action should be fair and not excessive.

It is imperative that the employee concerned is afforded these rights when dealing with disciplinaries. The reasonableness of the employer’s conduct and adherence to procedures is essential to the overall fairness. The burden rests solely on the employer to act reasonably and comply with fair procedures, whether in relation to a termination or other disciplinary matter.

In instances where poor performance warrants disciplinary action, employers need to act cautiously. The Labour Court may find that employees were unfairly dismissed due to the procedures utilised in their dismissals. Thus, employers need to have disciplinary procedures in place and need to follow these consistently when addressing issues of poor performance.

The disciplinary procedure has a series of 5 steps, generally a linear progress. However, in cases of serious misconduct or repeated transgressions, it is permissible to progress to a more severe sanction. There is the need to monitor and review fluctuations and improvements during every stage in the process, being fair and reasonable.

Incompetence is a very serious and difficult issue for both employer and employee, however there are some clear rulings and necessary steps for employers when dealing with a “poor performer” in the workplace.

Counselling

When there is a problem with an employee’s work, it is very easy to ignore it for as long as one can and only when it impacts the people around them or the business is it addressed generally by simply issuing a disciplinary sanction. This temporary fix to resolve the situation is appealing rather than finding the cause and supporting them to overcome any difficulties (i.e. training). Counselling can be characterised by highlighting to the employee their current performance and the employer’s expected performance. This process is not always successful and sometimes requires further action. Equally, an employee’s poor performance should be noticeably lower than others and one act of carelessness should not be misconstrued for incompetence.

Clear Objectives
After many discussions with an employee on their performance, or lack thereof, an employer may set or amend target/goals to assist the employee to ascertain improvement. It is essential the employer clearly communicates their dissatisfaction in their work and highlights the consequences of not improving. It is advisable the employer is very clear when addressing the areas of concern – passing comments or casual remarks cannot be understood as expressed dissatisfaction. These targets should be reasonable and achievable and at this point should consider their skills, training and levels of support and should be agreed by both parties. If employee continues to underperform, the employer may have grounds to issue a disciplinary, however the rules of natural justice should be followed.

Reasonable Time to Improve
When an employee has been issued a disciplinary sanction and instructed to improve in that area, they should be given sufficient time to show improvement. It would be recommended that an employer shows an interest in their improvement through re-training and refreshment of the work policies. The employer should monitor the employee and identify whether their performance has improved or unchanged.

Employers invariably lose Unfair Dismissal cases because fair procedures and the Rules of Natural Justice were not adhered to. Although the process can seem tedious, it ensures standardisation, equality of treatment and an understanding of what is to be expected.

You can view the ‘Discipline and Grievance’ section of the SFA website here. Ibec Academy are facilitating a one day ‘Running Effective Disciplinary Processes’ course on Monday 15 May 2023, and further information about this course can be found here. (SFA members can avail of the discounted Ibec member rate for all Ibec Academy courses).

If you have a query on disciplinaries, please contact Fiona on 01 6051557 or fiona.mulligan@sfa.ie.