When looking at disciplining or dismissing an Employee it's paramount that the Employer firstly refers to the Employment Agreement the company has with that Employee.

When taking disciplinary or dismissal measures, the Employer must act as a 'fair and reasonable' as the Employer could have done in the circumstances. Broadly speaking there are two parts to this.

• Firstly, there must be a good reason or justification for taking the action;
• Secondly, this must be undertaken in a procedurally fair way.

In general there are two types of good reason; general and serious misconduct.

If proven, general misconduct generally leads to a warning, while serious misconduct may lead to dismissal without notice. Both must still be conducted following fair procedure.

Examples of Serious Misconduct

An act of serious misconduct generally includes situations like;

• falsification of records,
• theft,
• fighting,
• sexual harassment,
• criminal conduct,
• intoxication,
• and failure to follow lawful and reasonable instructions

Examples of General Misconduct

This act includes things less serious such as:

• lateness,
• failure to meet dress code,
• fatigue,
• and the breach of employer’s internet use policy

Action Post Misconduct

The nature of the procedure to be undertaken for disciplinary measures depends upon the nature of the misconduct. The Employee must be informed about all the allegations and what the outcome of the disciplinary process could be. The Employee should be given a letter notifying them of the disciplinary meeting, the allegation, the potential outcome and an invitation for them to consult with and bring a support person such as a lawyer.

At this stage of the disciplinary process, suspension may also be appropriate if the misconduct is deemed serious enough. This also must be conducted in a procedurally fair manner. Next, the Employer must undertake a thorough investigation which includes interviewing all relevant witnesses and gathering all relevant information. At the subsequent meeting with the Employee, the Employer must give the Employee an opportunity to respond to the allegations. The Employer is well advised to inform the Employee again of the potential outcome of the meeting in order for the Employee to respond to that potential outcome.

At these meetings, often Employers become emotionally involved and this can lead to an unprofessional and legally dubious procedure. It is only after the meeting with consideration of the Employee's response to the issues that a letter outlining the appropriate disciplinary sanction should be imposed. This may be a verbal warning, a written warning, a final written warning, or dismissal. In rare situations, it may be appropriate to demote an Employee. Termination by text message, of course, will see the Employer facing a well founded and costly personal grievance in the Employment Relations Authority.

The employment relations advisers at Employers Assistance can help you through the quagmire of disciplinary process. Can an Employer who has been harassed sit on the panel to dismiss the Employee? Should a third party conduct the investigation? What if you have evidence that you can’t disclose to the Employee about that Employee’s conduct? How long should you wait for the employee to get a representative? Should you record the meetings? Should you report the conduct to the police? What if the Employee refuses to attend the meeting? These are all questions that Employers Assistance can walk you through.

For further information please see our ebook Discipline & Dismissal: The Disciplinary & Dismissal Processes, or join us to ensure you get all this right.