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CONTENTS:1.Principles of natural justice2. What comes up for VBOM and Staff3. What constitutes a disciplinary issue & gross misconduct4. Key points to remember when dealing with disciplinary issues5. Preparation for decision to take disciplinary action 6. Formal disciplinary stages7. Preparation and running of disciplinary meetings. 8. Appeals Procedure
A COURT OR TRIBUNAL WOULD LIKELY CONSIDER ANY PROCEDURES, WHICH ARE LESS BENEFICIAL TO AN EMPLOYEE, UNFAIR. (Emphasis will be on the Employer to prove they acted fairly).
STANDARDS OF PROCEDURAL FAIRNESS MEANS THE EMPLOYEE HAD…… 2. THE RIGHT TO REPLY TO ACCUSATIONS 4. THE OPPORTUNITY TO IMPROVE PERFORMANCE & CONDUCT 1. NOTICE OF AND UNDERSTOOD THE CASE AGAINST HER / HIM 3. THE OPPORTUNITY TO HAVE SOMEONE ACCOMPANY THEM 5. THE RIGHT TO HAVE THE CASE HEARD WITHOUT PREJUDICE 6. THE RIGHT TO APPEALTHE DECISION MADE
REQUIRMENTS OF PROCEDURAL FAIRNESS PERSISTENT PATTERNS OF BEHAVIOUR - EVIDENCE THAT THE EMPLOYER GAVE THE EMPLOYEE PROPER WARNINGS AND A CHANCE TO IMPROVE SINGLE SERIOUS INCIDENT - EVIDENCE THAT A FULL AND FAIR INVESTIGATION TOOK PLACE
THE EMPLOYMENT APPEALS TRIBUNAL (E.A.T.) IN TESTING THE FAIRNESS OF A DECISION TO DISMISS, WILL MEASURE EITHER THE PROCEDURES / OR / THE LACK OF PROCEDURES… AGAINST THE STATUTORY CODE
EMPLOYERS SHOULD HAVE DISCIPLINARY PROCEDURES IN PLACE BUT ALSO NEED TO FOLLOW THESE PROCEDURES CONSISTENTLY WHEN DISCIPLINING ANY EMPLOYEE.
THE BEST SOLUTION TO DEALING WITH DISCIPLINARY ISSUES IS…….. • PREVENTION ~ PREVENTION PREVENTION !!!!!! • ACTING FAIRLY & STICKING WITH PROCEDURES • KEEPING ACCURATE RECORDS
2. WHAT COMES UP FOR VOLUNTARY BOARD OF MANAGEMENT AND STAFF WHEN DEALING WITH DISCIPLINARY ISSUES
SOME ISSUES FOR VBOM OR SUPERVISOR Uncomfortable bringing up the issue in the early stages. Unskilled or not comfortable at giving direct feedback Let down and frustrated at the lack of performance. That they just want to get rid of the problem / go into denial. That its their fault or boundaries get blurred between friendship and being an employer. Insecure and concerned about initiating what is, in effect, a legal procedure. Nervous about whether or not they are being fair to an employee.
SOME ISSUES FOR EMPLOYEES Feelings of being picked on. Insecure in there own work performance. False sense or lack of awareness of their own difficulties in performance at work Incapable of changing / meeting the required standard. Regretful and apologetic for their past performance. Angry at the supervisor, Project, and or VBOM
3. WHAT ISA DISCIPLINARYISSUE……..EXAMPLES OF MIS-CONDUCT & GROSS MIS-CONDUCT
EXAMPLES OFMIS-CONDUCT Consistently poor attendance / time keeping or lateness. Failure to follow procedures re sick leave or injury. Negligence in the performance of duties. Being absent without reasonable permission or excuse. Deliberate breach of safety rules. With holding of info which obstructs the work of the project. Bringing the organisation into disrepute. Breach of confidentiality. Consistent non-co-operation with other staff, direct supervisor or VBOM. Breach of the organisations policies and procedures Miss-use of computer / email / internet in projects time
EXAMPLES OF GROSS MIS-CONDUCT Unauthorised use of assets and equipment. Sexual harassment, harassment or bullying. Refusal to carry out duties or obey reasonable instruction (except where it impacts on a workers safety). Theft or unauthorised possession of another employees / the projects property. Malicious mischief resulting in danger to fellow employees. Consumption of alcohol or drugs. Possession of illegal substances whilst on the premises. Violent, threatening or bullying behaviour. Inappropriate use use of email, internet or computer systems re pornography / child abuse. Serious breaches of terms and conditions. Falsification of records / accounts / expenses / reports. Gambling or money lending etc..
4. KEY POINTS TO REMEMBER WHEN DEALING WITH DISCIPLINARY ISSUES
4.1 At the core of any project is the need for satisfactory standards of performance and behaviour from all staff. Staff should be informed o what is acceptable during their induction period. 4.2 Important to have fair and equitable disciplinary procedures 4.3 Disciplinary procedures should be available in writing to all staff within 28 days of starting work 4.4 Objective of the procedures is not to impose punishment but to allow a mechanism which gives employees time to improve performance or conduct. 4.5 A dismissal should only arise when all efforts to improve performance or conduct have been exhausted. 4.6 It is important to understand the implications of taking any form of disciplinary action and the procedural requirements. All incidents and efforts to bring about change must be recorded and dated.
4.7 It is important to always have two project representatives in attendance. 4.8 At all stages it is important to discuss and / or seek legal advise from your solicitor. 4.9 Boundaries between managing performance and taking disciplinary action are often confused. If attendance, time-keeping or competency levels slip, and no action is taken, employees may assume that such behaviours are ok. It is therefore important to take informal action on early indicators and provide feedback on what is acceptable and unacceptable behaviour or performance. 4.10 As a result, performance levels will be back in line more quickly and the project can build on the strengths and the positive relationship with the employee. This reduces the incidence of using the formal elements of the disciplinary procedure.
4.11 In some cases it may be necessary to use the disciplinary procedures and this should not be considered a failure on the part of the project. 4.12 Legal protection for unfair dismissals comes into force at the end of one year’s service. 4.13 The employee must always be kept informed in writing of what is happening and be clear after leaving each disciplinary meeting what the implications are if improvement does not happen. 4.14 It is important to know how to use the probationary period to deal with poor performance, breaches of procedures or poor selection decisions at the early stages. 4.15 However, employers are required to provide all employees with details of the disciplinary procedures within 28 days of starting work.
5. HOW YOU NEED TO PREPARE BEFORE MAKING THE FINAL DECISION TO INSTIGATE DISCIPLINARY PROCEDURES
5.1 WORK WITH RSA / SEEK LEGAL ADVICE 5.2 GATHERING INFORMATION: Such as collating the evidence of poor performance re supervision records, time sheets, operational plans / targets set and not met etc.. 5.3 CARRYING OUT INVESTIGATION OF PARTICULAR INCIDENT: This could be in relation to gross miss-conduct. The employee must be made aware that this is happening. Should be undertaken by a neutral person / persons and written up objectively and all parties who witnessed this should be interviewed.
5.4 ASSESSMENT IF THERE IS ADEQUATE GROUNDS FOR DISCIPLINARY ACTION REMEMBERING TO TAKE INTO CONSIDERATION THE FOLLOWING: • That Projects standards have been made clear. • Rules, regulations, and procedures have been defined. • Employee has been made aware of the disciplinary procedures. • Has the disciplinary procedure been used to address a similar issue in the past. • The employee has previously been told that they have to improve on performance. • 5.5 MAKE DECISION AS TO NEXT STEPS • If it is to initiate disciplinary action then you must follow consistently you procedures right through to the final stage acting as fairly as possible and keeping the situation confidential and professional.
FOUR STAGES FOR DEALING WITHONGOING MISS-CONDUCT STAGE 1:FIRST VERBAL WARNING STAGE 2:FIRST WRITTEN WARNING STAGE 3:FINAL WRITTEN WARNING STAGE 4:DISMISSAL
BEFORE GIVING THE 1st VERBAL WARNING THE EMPLOYEE SHOULD BE: • Told that their work / behaviour has fallen below an acceptable level and be made aware that this is unacceptable. • This should be recorded at a support and supervision meeting and employee has the right to see it etc. • Advised of how improvements can be made and given a period of time to improve their work / behaviour / attendance. • Informed of the likely consequences if there is a lack of improvement i.e. Formal disciplinary procedures • Advised to read the projects disciplinary procedures • Given adequate notice of any subsequent meetings and informed of their right to bring someone with them
STAGE 1:FIRST VERBAL WARNING IF THERE ISN’T IMPROVEMENT IN THE EMPLOYEE’S BEHAVIOUR BY A SPECIFIED TIME, THE FORMAL VERBAL WARNING IS ISSUED. PROPER NOTIFICATION MUST BE GIVEN OF THIS. THE FIRST VERBAL WARNINGS SHOULD STATE CLEARLY: How the employee has dropped in acceptable standards. What improvement is required and by when. An agreed plan for assistance. How long this written warning will stay in the employees files. Notification of what will happen if there is no improvement by the specified review date. (This will need to be put in writing to the employee after you have had the meeting) IF THERE IS NO IMPROVEMENT BY THE DATE SET FOR THE NEXT REVIEW THE PROJECT WILL MOVE ONTO STAGE 2: First Written Warning
STAGE 2:FIRST WRITTEN WARNING THIS WILL REQUIRE THE PROJECT TO PUT THE FOLLOWING IN WRITING: • What the initial concerns were. • Details of how the employee’s progress has not been satisfactory. • The improvements required and by when. • Any agreed plan for assistance. • How long this written warning will stay in the employees files. • Notification of what will happen if there is no improvement by the specified review date. • IF THERE IS NO IMPROVEMENT BY THE DATE SET FOR THE NEXT REVIEW THE PROJECT WILL MOVE ONTO • STAGE 3: First Written Warning
STAGE 3:FINAL WRITTEN WARNING IF, AT THE DATE OF THE AGREED REVIEW MEETING THAT PROGRESS IS STILL UNSATISFACTORY, THE EMPLOYEE WILL RECEIVE A FINAL WRITTEN WARNING SPECIFYING THE SAME AS IN STAGE 2, WHICH WILL REMAIN ACTIVE ON THEIR PERSONNEL FILE FOR A SPECIFIED PERIOD OF TIME. THE FINAL PART OF THE LETTER SHOULD STATE THAT A REPEAT OF THE OFFENCE OR A PERSISTENT LACK OF PROGRESS BY THE NEXT REVIEW MEETINGWILL LEAD TO DISMISSAL.
STAGE 4:DISMISSAL DISMISSAL SHOULD BE CONFIRMED IN WRITING AND SHOULD BE WITHIN THE TERMS OF THE MINIMUM NOTICE AND TERMS OF CONDITIONS ACT. THIS LETTER SHOULD ALSO STATE THE GROUNDS FOR THE ACTION TAKEN.
7.1 OPENING THE MEETING Ensure all parties are introduced Clarify the role of the employee representative re listening on behalf of the employee / If employee has not brought one , find out why and record reasons. Explain that you will be taking notes and that you will be adjourning the meeting for a period of time to reach final decisions once all the information has been heard. 7.2 EXPLAIN THAT THE PURPOSE OF THE MEETING IS TO: Initiate a disciplinary procedure / refer to letter sent. Check that the information gathered re disciplinary issues is accurate. Give the employee and opportunity to respond to questions. Allow the employee to share any relevant mitigating circumstances. To agree a performance plan / target / agree next steps 7.3 HEAR THE EVIDENCE: Hear from employees perspective / ask questions / share information from investigation (if one was undertaken) / invite comments / ask the employee and their representative if they have anything to say in the workers defence
7.4 ADJOURN MEETING FOR A SHORT WHILE TO: • Check all the facts/ make sure all the questions have been asked / if not what else do you need to ask. • Assess whether or not the employee has added any additional information to the process that was not envisaged and has this any bearing on the disciplinary action. • If yes, then the disciplinary group can decide to, seek further information, get further legal advice, continue with suspension to gather further info, or make a change to the disciplinary action. • If not, then the disciplinary action can be up-held and implemented. • Write the decisions down so that it can be read back to the employee. • Re-convene the meeting and read out, make sure that employee understands what has been said and write out formally to the employee clarifying the situation.
EMPLOYEES HAVE THE RIGHT TO APPEAL THE PROCEEDURE, IN WHICH CASE: An Appeals Panel will need to be established from other members of the VBOM and they will have to go through an independent investigation into the situation / meet with worker / reach a decision to up-hold the disciplinary process or change it. Other supports could be utilised such as the Labour Rights Commission / this is a free service / information on another presentation
