Employment Relations
Comment on recent Employment Case summaries
Upon reviewing recent Employment case judgments and decisions from the Employment Court, Employment Relations Authority and Employment Tribunal over the past few months it appears there are many employers who are uncertain of the various processes that need to be adhered to when managing employees.
The following three specific situations seem to re-occur frequently and therefore have taken the opportunity to comment on them to remind employers of the need to follow appropriate policies and procedures.
Discipline Interviews
It is vitally important employers follow correct procedures when conducting disciplinary meetings/interviews. Failure to do so can result in costly grievance claims.
Although there are a number of actions that should be taken, (refer to the FORMS section of this web site for 'Disciplinary Checklists' and associated documents - subscriber access only) there are 2 specific areas that have been highlighted in recent cases.
- Employees must be advised beforehand the reason for calling a disciplinary meeting
This should not be in detail (the meeting discusses the detail), however the employee must understand the reason for the meeting and any allegations being made against them. Failure to do so allows the employee to claim they have not had an opportunity to respond properly to any allegation
- Employees must also be given the opportunity to have a witness present even if this means postponing the meeting for 1-2 days to allow them to arrange for their representative to attend. Failure to do so will again give an employee the right to claim they have not had an opportunity to respond properly to an allegation.
Trial Periods
Trial periods are effectively a settling in period or an induction process to the company and do not allow employers to contract out of any legislation or contractual agreement. An employee under a trial period has the same rights under employment law as any other employee. Consequently an employer cannot simply terminate an employee at the end of the trial period without having gone through the appropriate disciplinary process. For example if an agreement specifies that a number of performance reviews will be conducted during the trial period, then these must be undertaken. An employer cannot simply ignore the terms of any agreement to review performance and then at the end of the trial period give an employee a letter advising of their poor performance record. This could lead to the employee resigning and then claiming a grievance for Constructive Dismissal.
(Refer to the FORMS section of this web site for various Performance Review Forms - subscriber access only)
New employees need to know how they are performing so that they have the opportunity to learn and improve to reach the level of performance required. It is important and sound business sense to not only invest in marketing and product development resources but also into human resource development.
Redundancy
Many of the ER/Employment Court cases over the past few months have involved the process of selecting employees for redundancy. Under the E.R Act employers must act in good faith even when going through such a process. There are no set criteria for evaluating which employees should be made redundant and the process may involve any number of processes including voluntary, last on first off, or a competency review based process. (Employers should however review their own employee agreements for specific terms and conditions)
When implementing a redundancy selection process employers must advise employees what the process will be and employers must then adhere to this nominated process.
Employers may use some latitude in relation to the selection criteria and may exercise some discretion when applying criteria, however this must be done openly and honestly.
(Refer to the FORMS section of this web site for a Redundancy Checklist, Letters and Documents - subscriber access only)
