2022-05-21

Procedural Fairness In Employee Dismissal

Employee dismissal is a serious issue that requires a lot of attention. Even if there are reasonable grounds for dismissal, the employer must be fair to the rights of the staff member and must perform the contract termination with due process of law. But first, let’s discuss the due process in an employment scenario:

Due process

When deciding cases, the Judges in the Employment Court have laid out a set of rules which are to be obeyed when making major employment decisions, such as a dismissal.

The name given to the rules is ‘procedural fairness’ or ‘Natural Justice’. This is the right to a fair hearing BEFORE judgment is issued. In employment situations the judgment may be, for example, a dismissal.

To many employers ‘Natural Justice’ is the antithesis of reality. The ‘natural’ order of things is to make a decision then talk about it later. For better or worse, Judges have reversed the order of employment decisions: you are required to only have a tentative view of events, call a meeting to discuss POSSIBLE problems. Ask WHY the problems have happened, and only then are you legally able to decide who is at fault and what penalties flow as a result.

Often, decisions flow quickly, the events speak for themselves, discussion seems wasteful and unnecessarily hurtful. But, from time to time valid explanations do come out of hearings and the course of events is dramatically changed as a result.

Best practice is always to hold hearings even when you think the issue is cut and dried. That’s what EAL’s service does, guides you through the process of holding a fair hearing and recording your actions for all to see.

A brief summary of the rules is: require the employee to attend a disciplinary meeting, tell them of the POSSIBLE problems, or describe what SEEMS to be wrong. Ask them to provide explanations if they can. Offer to wait a while, so the person can arrange for representation if they wish it. Keep an open mind, displaying only tentative ideas, until explanations are complete. Then issue your decision.

Justification

Justice, is something we all want, so employers are required to provide justice by being ready to explain why they dismissed an employee if called to do so by a Judge.

Justifying a decision is often straight forward, but not always so. The more serious the offending the more difficult it can be to prove something happened and the more likely it is that an employee will contest a decision to dismiss. There can be major repercussions for an employee who is dismissed.

Employers do need to have good reason for a decision. Employers often have limited resources and training themselves.

Legally, it’s always cheaper and easier to guide an employer through a decision process and conclusion than it is to pick up the pieces at the bottom of the cliff.

As a general rule, if you feel comfortable with a decision you are making, proceed, but if you have any doubts then take advice.

The Courts do not expect perfection, you do not have to have proof beyond reasonable doubt, but you are required to have enough good reason to show that your decision was one that others would have taken.

An investigation often leads into a requirement to hear the employee out fully FIRST before making a decision. Failure to follow this process, often leads employers to rue their haste.

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