The Industrial Relations Act 1990 provides a Code of Practice on Disciplinary Procedures and the 1993 Unfair Dismissals Amendment Act provides that a court or tribunal can take account of the adherence to this “Code”.
This Code provides guidance to both employees and employers as to the general principles that apply in disciplinary procedures and what is considered to be best practice. If there are already agreed procedures in place that conform to the general principles in a particular workplace then this Code does not apply. It essentially forms a baseline from which employers can draw up their own procedures in the workplace.
At the outset the Code sets out that grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and training and, trade union programmes of employee representative training. All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms. This may seem to state the obvious but in many instances employees are not made aware of the procedures in place or supervisory staff do not adhere to such procedures when dealing with complaints. This can cause a difficulty for employers if a claim is brought against them as it can form part of the evidence in a case. Procedures should be reviewed regularly and updated to reflect changes in work practices and employment legislation.
The Code also provides that the principles of natural justice must be adhered to and they include the following:
- That employee grievances are fairly examined and processed;
- That details of any allegations or complaints are put to the employee concerned;
- That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
- That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
- That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.
The Code provides that disciplinary action may include the following:
- An oral warning
- A written warning
- A final written warning
- Suspension without pay
- Transfer to another task, or section of the enterprise
- Some other appropriate disciplinary action short of dismissal
These actions are generally seen as progressive steps. However with regard to suspension without pay and demotion a word of caution must be sounded to employers. These actions may be in breach of contract or other legislation depending on the circumstances of the particular employment and so employers should be careful before invoking these sanctions.
Good disciplinary procedures that aim to assist the employee in their performance is the ideal standard in employment. Clarity, transparency and fair procedures can prevent any claims against employers for unfair dismissal.