The outcomes from these cases, which can be brought to a Rights Commissioner or directly to the Employment Appeals Tribunal (EAT), include
- Compensation (up to 104 weeks’ salary)
There are a number of key areas about which the EAT and Rights Commissioners are concerned and which can be critical factors in the ultimate decision. Here are four such factors:
Both the Employment Appeals Tribunal and the Rights Commissioner service are very anxious to see that the dismissed employee received procedural fairness leading up to the decision to dismiss.
What may appear to be fair to an employer may not be seen to be so by the EAT and the principles of natural justice should permeate every step of the procedure with the employee knowing what the charge/complaint against him/her is and the opportunity (with representation) to meet the charge.
The EAT and Rights Commissioners will also be influenced by whether the employer seriously considered alternative sanctions and penalties to outright dismissal. An employee may well argue that alternative penalties should have been imposed and that the dismissal was disproportionate to the alleged “offence”.
Opportunity to improve
Regular monitoring of an employee’s performance is important as is the opportunity for the employee to improve performance, particularly where the employer is claiming that poor performance or incompetence are the reasons for dismissal.
The tests to be used in dismissal cases as a result of alleged incompetence or poor performance are twofold:
i) Has the employer a genuine and honest belief in the incompetence of the employee and
ii) Is this belief reasonable and has the employer grounds for it?
The employee should be given plenty of opportunity to improve performance.
Representation at disciplinary hearing
The employee should be advised that he/she is entitled to representation at any disciplinary hearing and entitled to defend the charges against him/her.
In summary employers must be aware that
- Substantial grounds must exist for the termination of employment and
- Fair procedures must be followed pretty strictly.