Shannon Chamber HR is a dedicated HR and Employment Law Support Service for members of Shannon Chamber provided in partnership with Adare Human Resource Management, experts in Employment Law, Industrial Relations, Human Resources and Health & Safety at preferential rates.
Today’s article by Derek McKay, Managing Director of Adare Human Resource Management looks at when it is fair to terminate employment and how to avoid potential issues further down the line.
Fair grounds for dismissal
No employer wants to find themselves in the situation where they have to terminate an employees’ employment. However, if a situation arises and disciplinary action is required, arising out of the performance or conduct of an employee, an employer needs to ensure that they fully understand what grounds are considered ‘fair grounds’ under employment legislation. Specifically, employers should understand under what circumstances a dismissal relating to Competence, Conduct and Capability, will be considered fair in the decision of a third party (Workplace Relations Commission; Labour Court).
It is worth noting that any dismissal, other than constructive dismissal, is deemed to be unfair unless the employer can demonstrate that it was not and that the employer followed correct processes and procedures. Under the Unfair Dismissals Act, an employer is required to have a disciplinary procedure in place and that it is communicated to employees within 28 days of commencing their job. It is crucially important that these procedures are followed as if a claim of unfair dismissal is brought against the employer, it could result in a substantial financial impact.
Competence: this relates to an employee’s ability to do their job and their performance in their role. It is important to note however, that it must be clear that the employee was clearly aware of the expectations set out for them and must be relevant to the role they were hired to do. If any issue arises, the employer must also demonstrate why the standards are not being met and what improvement are required; these should be achievable in a reasonable length of time.
Conduct: relating to the behaviours of an employee, ranging from gross misconduct, which can warrant an instant dismissal (following an appropriate investigation and disciplinary process), to what could be referred to as ordinary instances of misconduct, which on their own don’t warrant a dismissal but when take examined together may do. An employer must investigate each of the misconduct situations thoroughly, give appropriate warnings including making the employee aware that dismissal might occur.
Capability: refers to the ability of the employee to carry out the terms of their contract, such as attending work as required and on time. If an employee dismisses an employee based on these grounds, they must be able to show documented proof of clocking-in records, documented absence without medical certificates.
If one of the above is reason for dismissal, the employer must demonstrate that the dismissal was fair through the procedures that were applied.
Other grounds for dismissal / termination of employment
For dismissals that are not based on disciplinary matters, fair grounds for terminating employment included the redundancy of the position and the employee, an employer’s failure to hold a qualification required to carry out their role and/ or a statutory duty requiring that the employee be dismissed, such as an invalid work permit.
Avoiding unfair dismissal claims
If an employer is considering dismissing an employee, it is key that employers consult and understand the legislation affecting them to ensure there is not an unfair dismissal claim brought against them. As previously mentioned, it is the employer’s responsibility to prove the dismissal was fair.
Key relevant employment legislation includes:
- Unfair Dismissals Acts, 1977 – 2015
- Employment Equality Acts, 1998 – 2015
- Industrial Relations Act, 1990
- Protected Disclosures Act, 2014
Our experience at Adare Human Resource Management when representing employers at the Workplace Relations Commission and Labour Court has shown time and again that it will find in favour of the employee (complainant) due to poor (or an absence of) processes and procedures being followed by the employer (defendant).
An example of this was highlighted widely in the media last year when a bus driver shared a photograph of a faulty wheel on social media. The WRC found that it was inappropriate for the driver to post negatively about his employer on social media, but he had been unfairly dismissed as the organisation had not adequately communicated its social media policy.
Another warning for employers to follow due process was a claim that saw a waitress who was dismissed immediately following a negative TripAdvisor review about her. The employee had never been provided with a statement of terms and conditions of employment and there had been no previous indication of either customer or management dissatisfaction with her work. She was given no opportunity to respond or appeal the decision to dismiss her. The WRC found in favour of the complaint and that the review on the website was far from fair grounds to dismiss the employee.
Regularly review policies and procedures
Linea, our online HR platform, is continuously updated with the latest employment cases and decisions emanating from both the WRC and Labour Court and provides sound advice and recommendations on what employers should be doing to protect themselves against claims that are easily avoidable.
As a starting point, our advice is to regularly review policies and procedures; we often identify shortcomings when doing so for our clients that can leave them vulnerable to potential issues. Not only is it important to have robust policies in place, it is equally important that they are adhered to and reviewed on a regular basis given the changes in employment legislation.
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For further information on the HR and Employment Law support services provided, to arrange a meeting or to receive a quote, contact the team at Shannon Chamber – firstname.lastname@example.org / 061 360 611