IT’S SIMPLY NOT enough to have HR policies in place in your organisation.
They must be followed and implemented correctly, particularly when dealing with termination of employment – otherwise it could significantly cost your business.
The advice follows two recent decisions by the Workplace Relations Commission (WRC), which saw separate claimants receive tens of thousands of euro compensation due to the lack of due process and procedure.
Dismissed based on allegation
In one of the cases, the claimant had sought adjudication by the WRC under the Unfair Dismissal Act 1977 having had her employment terminated after five years without any obvious justification.
The claimant had been dismissed by her employer, by email, based on an allegation against her made by co-employee. However, there was no investigation to substantiate the allegation nor did the employer follow any disciplinary procedure when terminating employment.
The WRC decision was in the amount of €18,400 compensation based on the fact the claimant was out of work for a period of time and when she did find alternative employment, it was at a substantially lower salary.
In accordance with legislation, all dismissals are considered unfair unless an employer can demonstrate otherwise.
Therefore, the employer must show that a reasonable decision was made when terminating employment and a fair procedure was followed.
In order to do this, it is important that an organisation retains adequate documentation to demonstrate adherence to the disciplinary process.
Terms and conditions
The second case saw the claimant seek adjudication by the WRC under the Unfair Dismissals Act 1977, the Terms of Employment Act 1994, the Organisation of Working Time Act 1997 and the Minimum Notice & Terms of Employment Act 1973.
The claimant was employed as a service adviser at a motor company for a period of 16 months from October 2015.
He had submitted that he had not received written terms and conditions of employment in accordance with the Terms of Employment (Information) Act.
Terms and conditions of employment must be furnished to an employee within the timeframe set out in the act: two months of the commencement date of their employment. This was not contested by the company.
It was stated by the complainant that he was dismissed during the course of a heated meeting and that the dismissal was substantively and procedurally unfair.
He also said that the company was in breach of the Minimum Notice and Terms of Employment Act for failing to pay his statutory notice. He had also said that the working environment was very pressurised and stressful.
In the evidence given during the WRC hearing, the company submitted that there had been issues around the performance of the claimant carrying out his duties, poor attendance and for misleading them.
They countered that the claimant had taken 41 days sick leave in a 14-month period, without medical certification and that he had also lied in relation to outstanding customer payments.
The WRC upheld the complaint that the employer was in breach of the Terms of Employment (Information) Act 1994 and awarded the claimant €1,500.
It was also found that the claimant was dismissed without the application of fair procedure.
The adjudicator also found that the claimant was working in an unsupportive environment and the lack of any procedures, as would normally be set out in terms and conditions of employment, was a contributory factor in his failure to challenge the performance issued raised.
He was awarded €12,000 compensation. He was also awarded a further week’s salary for monies not paid to him during his notice period.
There may well be legitimate reasons to terminate an employee’s contract for disciplinary or performance related issues.
But if the employee has not been provided with a written copy of the employer’s dismissal procedure no later than 28 days after they have commenced work, then the employer is in breach of the Unfair Dismissals Act.
As this case shows, it is in the employer’s own interest to have a clear and comprehensive set of procedures governing dismissal and ensure that employees are fully aware with the procedures.
And again, the employer must be able to clearly demonstrate that a dismissal was based on reasonable decisions and fair procedure was followed.
By not following the right and fair policies and procedures set out in legislation, employers leave themselves open to significant financial penalties, regardless of the reasons for dismissal.
Derek McKay is managing director of Adare Human Resource Management, which will host a mock WRC adjudication hearing on 17 April.