In Ireland, since the 1970's when the introduction of employment legislation began to enforce employee's rights while causing headaches for employers who are often unprepared and in some cases try to bury their head in the sand rather than be more proactive in keeping updated with robust policies and procedures, regular training sessions for all staff and in particular ensuring management are adequately trained and resourced to deal with workplace issues. Fast forward to 2019, and there is more legislation, more EU regulations and directives while employee's are more educated and aware of their fundamental rights and the rights and duties owed to them by their respective employers. At FreshThinking, we provide a holistic suite of services including Workplace Investigations, and as experienced employment law advisors' we can carry out the investigation or alternatively, we can hear the appeal as an appropriate third party unrelated to the history of the case. It is extremely important that workplace investigations, which are very common and arise where an employee has been accused of committing an act of serious misconduct or gross misconduct e.g. violence, intoxication at work or some other misappropriate behaviour.
In criminal cases every person is innocent until proven guilty beyond a reasonable doubt however the bar is lower in civil matters hence the threshold is to satisfy the balance of probability. It is vitally important that employers have built-in the principles of natural justice and fairness to ensure they insulate themselves from possible unfair dismissal proceedings which can often happen hence ensuring they have done everything possible to prove the dismissal was fair is a stepping stone to avoiding potential monetary loss. In addition, ensuring that any sanctions are proportionate to the circumstances should also be well thought out.
The following fair procedures which are grounded in the concept of natural justice and establish within the constitution are:
1. Every employee must be made aware of the charges being made against him/her
The charges should be set out in writing including all relevant documentation e.g. any witness statements being relied upon. If these are not available then the union representative should be looking for them. If there is a written report available, the employee ought to receive a copy of that report in good time before the disciplinary hearing.
2. The right to be heard and to answer any charges made against the employee
The employee should be allowed to respond to the allegations. The employer must give fair value to the employee’s explanation or comments. It is a fundamental requirement of fairness that an accused employee is given a full and reasonable opportunity to examine all relevant witnesses.
3. Employees are entitled to representation
Union employees are entitled to representation by their Union representative under a Code of Practice in disciplinary matters (S.I. 146 of 2000). This is not a legally enforceable instrument but if the employer refuses this facility, the Tribunal may make an inference of unfair procedure in an Unfair Dismissal case. The recent Lyons case has raised the question in relation to whether legal representation should be allowed in cases where facts are been established which may result in job loss.
4. There must be an impartial investigation
If there is a relationship between the accused employee and the investigator or if the investigator is connected to a witness, or previously had any involvement in the issue, then the affected employee may argue that there is an element of bias. This may also occur at the appeal of a disciplinary whereby the hearing manager should not have taken part in the investigation or the original disciplinary hearing.
An employee may also consider taking an injunction against their employer if they believe that have been subject to unfair procedures in an investigation however it is costly and also quite risky since the order would be sought in the high court which is out of our Jurisdiction in terms of the services we offer.