Disciplinary proceedings
The outcome of disciplinary proceedings may range from no further action to be taken through to the possibility of a verbal warning or even summary dismissal.
The employer’s good faith obligations contained in section 4(1A)(c) of the Employment Relations Act require “…an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of his…employee…to provide the employee…(i) access to information, relevant to the continuation of the employee’s employment, about the decision; and (ii) an opportunity to comment on the information to their employer before the decision is made.”
Plainly put, this means that an employer considering disciplinary action needs to ensure that he has given the employee a copy of all information that he is relying on in making the decision, such as evidential documentation.
The employee must be given a genuine opportunity to comment on both the allegations, and the nature of any likely outcome, prior to the decision is made as to the outcome. The employer must approach disciplinary proceedings with an open mind, and be ready to hear the employee out before making their decision.
Amendments to the Act are coming in force as of the 1st April 2011. The Act will now state more clearly the minimum requirements for employers proposing to make a decision that will affect their employee’s employment.
In any disciplinary proceedings an employee must be invited to a formal meeting and to be advised that they may have a support person with them. A brief notice of the allegations must be given to the employee at this stage so that they are able to prepare. Documents must also be referred to the employee evidencing the allegations that have been made, if such documentation is to be relied on by the employer. The employee should be given an opportunity to review that documentation and to seek assistance from a professional legal representative if they choose to do so. It may be that the initial meeting may have to be rescheduled within reason. At the meeting the employer should take care to listen carefully and take notes of the responses to the allegations and it is important that no decision is made at the meeting. Finally a decision can be made and notified to the employee subsequent to receiving the employee’s responses.
If summary dismissal or dismissal is being considered then the employee must be advised of this prior to the commencement of the proceedings and must be given an opportunity to comment on dismissal as a remedy and to give any pleas in mitigation prior to a final decision being made by the employer.
We are very pleased to offer full support to employees in this situation.
