Company Sacking Employees Without Following Diciplinary Procedures

[Valhalla]

Hello,

I am looking for some advice regarding a relative that is about to get sacked from his job. He is a qualified tradesman and has been in permanent employment with the company for 2 years.

Recently the company have been getting rid of people that have been on contract or still within their probationary period and there has been a general feeling amongst the workers that they company is on the lookout for excuses to sack other workers.

The issue with my relative is that in the recent weeks the company have told him that two pieces of work were not carried out correctly and that he was at fault. The issues were brought to his attention by his union rep who told him that he had met the management (company called in the union without his knowledge) and that they were not happy with him and wanted him out. After stating his case and arguing that he was not at fault with the work the union rep had more meetings with the management and eventually he was called to talk to the management himself. At this meeting the company tried to get him to accept the blame for the issues but he contended the issues were procedural rather than human error.

To cut a long story short, he is concerned at the way the union have been interacting with the company and how he was not disciplined (verbal or written) regarding these incidents and instead has been told that that the company had compiled a report and will hold a hearing on Friday that could determine his position within the company.

I am wondering what other people might think if this as it seems very strange to me that the company can move straight to the point of sacking someone without going through the correct procedures i.e. verbal/written warnings.

Any thoughts would be appreciated as he is only young and he feels that he does not have the support of the union and really feels hard done by to the point where he would be prepared to take to the courts if necessary.

Thanks.

 

[Staples]

You're quite right in your assertion that any termination for the reason you've offerd must follow clear procedures that were clearly communicated in advance. In other words, an employee should know the circumstances in which he may be fired and it shouldn't come as any surprise therefore.

Also, a probationary period of more than 12 months duration has no status in Irish law. If your friend is there two years, he can't simply be let go no matter what probationary system is in place within the firm.

Contact the National Employment Rights Authority for more info about right and the protections afforded by the state and its institutions. [broken link removed]

 

[shipibo]

Sometin fishy here ....

Union rep without member goes to meeting ????

Did member attend meeting with rep when management requested a meeting..

Has member spoke to rep, and asked to meet branch secretary detailing his unhappiness with procedures followed.

To answer: In some circumstances, Immediate release can happen, if you feel unfairly treated, take it through the courts ...

 

[shipibo]

Any thoughts would be appreciated as he is only young and he feels that he does not have the support of the union and really feels hard done by to the point where he would be prepared to take to the courts if necessary.

Thanks.

You should contact Union on his behalf, detail to head man the trail of events that have led to this situation and demand their personal involvement.

Send letter also.

 

[Valhalla]

Thanks for your replies. The meeting took place a day early last week as the Union Rep was taking 2 weeks holiday on the Friday. Apparently the meeting was just a repeat of the previous meeting in that they still wanted him to accept responsibility for the two issues. He went over the two incidents again with the management and outlined with suuport from the union that one of the incidents could not be attributed to his actions and that the second was the result of mixup between himself and the supervisour. The meeting ended the same way as the last one with the management again saying that they will make a decision in the next week.

Yesterday his shop stewart came to him with a letter from the management stating their concern with recent events and his ability. It said that they do not like getting rid of people and so they were willing to give him three months to show his ability and regain the trust of the company. If after the three months they feel that he has not made the appropriate progress he position will be reviewed. They asked the shop stewart to sign the letter on behalf of the Union Rep who had been dealing with the issue.

My relative has decided not to sign the letter at least until the Union rep comes back off his holdays and is very concerned at signing it at all as he feels like he is effectly signing his rights away as the company still have not addressed the problems and would have the right to sack him without any further talks.

Any more thoughts on this would be appreciated. Thanks.

 

[Guest117]

He is right not to sign anything - he should immediately check his contract and the employee handbook / company policies on dismissal and disciplinary procedures. I assume all of these are in place. If the company have not issued a contract or do not have the correct policies in place then they are in breach of employment law and NERA will be happy to hear about them.

If your cousin has been employed full time for 2 years then he is covered by the unfair dismissals act and cannot be fairly sacked without 1 verbal warning, 2 written warnings and 1 or more meetings to discuss the issues for which the warnings were issued. He can request full company investigations into the alledged incidents etc. All should be spelt out in the company procedures.

 

[Mpsox]

If your cousin has been employed full time for 2 years then he is covered by the unfair dismissals act and cannot be fairly sacked without 1 verbal warning, 2 written warnings and 1 or more meetings to discuss the issues for which the warnings were issued. He can request full company investigations into the alledged incidents etc. All should be spelt out in the company procedures.

Not entirely correct in that in cases of gross misconduct, a company can move straight to dismissal if the situation warrents it. Gross misconduct would normally include such things as theft and assault but could also include such things as a serious breech of Health and Safety rules leaving staff/customers open to injury or worse

In this situation, it is not clear what the individual is deemed to have done but the company is saying that they are concerned about his ability and are giving him 3 months to improve his performance. From the OP comments, they are not saying they are going to sack him at this stage, or in 3 months time. They are saying they are going to review his position. Companies are under no obligation to retain poorly performing staff, but if, in 3 months time they deem his performance has not improved, they canthen move to working the individual out the door and then they would go through the verbal/written warning stage.

 

[Guest117]

Not entirely correct in that in cases of gross misconduct, a company can move straight to dismissal if the situation warrents it. Gross misconduct would normally include such things as theft and assault but could also include such things as a serious breech of Health and Safety rules leaving staff/customers open to injury or worse

Mpsox -- You are correct but gross misconduct was not mentioned by the OP and in any case also has to be dealt with in company policies or employee handbook

 

[shipibo]

Companies are under no obligation to retain poorly performing staff, but if, in 3 months time they deem his performance has not improved, they canthen move to working the individual out the door and then they would go through the verbal/written warning stage.

Can you point to cases / legislation to support your statement ??

 

[shipibo]

They asked the shop stewart to sign the letter on behalf of the Union Rep who had been dealing with the issue.

Did shop steward sign, the clearer your mails, the more help we can provide;

BTW, Sign nothing

 

[Valhalla]

Thanks for the posts,

He is not signing the letter and has told the Shop Stewart not to sign it either. He has told him that he wants to talk to the Branch Secretary when he returns from his holidays as he is still not happy that the underlying issues have not been resolved and that he is being held responsible for the two incidents.

The letter states the following:

We propose that for a period of 3 months we will monitor you competence, general performance, responsibility, and attendance in relation to your employment. During this period we will do all within our power to offer assistance, support and encouragement to enable you to achieve the levels of trust, competence and responsibility required by this company.

If, during that period, we do not see a significant improvement in these areas we will have no alternative but to terminate your employment with xxxxxx. After the 3 month period has expired we will carry out a review to confirm your future status with this company.

As I said the Branch Secretary is on holiday so I am trying to do my best to advise him until he returns. An issue I see is that the company have failed to prove that two incidents were his fault but are continuing to try and get him to be accountable for them. The latter stated the they will monitor attendance even though he has never been warned about his attendance in the past. The letter does not reference any of the companies disciplinary procedures and those procedures have not been mentioned at all in the now 5 weeks that this has been going on. There has been no involvement from the HR representatives in the company.

I would like to know what his options are if he refuses to sign this. Could the company see this a refusal to co-operate and move to dismiss him? Does he have to have the unions support if he does not want to sign it? And are the company at fault for not mentioning/referencing/following it's disciplinary procedures?

Again, any thoughts and advice would be appreciated. I am trying to read up on this but am very busy at the moment myself.

 

[shipibo]

Thanks for the posts,

He is not signing the letter and has told the Shop Stewart not to sign it either. He has told him that he wants to talk to the Branch Secretary when he returns from his holidays as he is still not happy that the underlying issues have not been resolved and that he is being held responsible for the two incidents.

The letter states the following:

We propose that for a period of 3 months we will monitor you competence, general performance, responsibility, and attendance in relation to your employment. During this period we will do all within our power to offer assistance, support and encouragement to enable you to achieve the levels of trust, competence and responsibility required by this company.

If, during that period, we do not see a significant improvement in these areas we will have no alternative but to terminate your employment with xxxxxx. After the 3 month period has expired we will carry out a review to confirm your future status with this company.

As I said the Branch Secretary is on holiday so I am trying to do my best to advise him until he returns. An issue I see is that the company have failed to prove that two incidents were his fault but are continuing to try and get him to be accountable for them. The latter stated the they will monitor attendance even though he has never been warned about his attendance in the past. The letter does not reference any of the companies disciplinary procedures and those procedures have not been mentioned at all in the now 5 weeks that this has been going on. There has been no involvement from the HR representatives in the company.

I would like to know what his options are if he refuses to sign this. Could the company see this a refusal to co-operate and move to dismiss him? Does he have to have the unions support if he does not want to sign it? And are the company at fault for not mentioning/referencing/following it's disciplinary procedures?

Again, any thoughts and advice would be appreciated. I am trying to read up on this but am very busy at the moment myself.

He just needs to say " the letter will not be addressed until Union rep is back from holidays", I cannot see why he would want to sign ...

If they terminated his employment on this issue, it would be unfair dismissal, and Union should fully back him.

 

[Mpsox]

Can you point to cases / legislation to support your statement ??

The Unfair dismissals act allows an employer to justify a dismissal providing they can prove it occurred for a number of reasons. These include the capability and competence of the employee

Competence can be one of the more difficult reasons to prove as the employee can have a number of counter arguements. The employer has to be able to justify what can often be a subjective measurement, the employer must have made the employee aware of the issue(which has happened in this case). The employee can also claim that the reason for the poor performance was not their own ability(or lack of it) but down to such things as lack of company support/training in the job etc

Worth noting as well that a dismissal is deemed to be unfair until the employer proves othersie

 

[NiallP]

The employee is not being sacked. The letter is clearly a warning / improvement letter. Therefore the Unfair Dismissals Acts do not apply because there is no dismissal.

However, if fair procedures have not been followed, the employee can seek to refer the issue regarding adequacy of procedures to a Rights Commissioner / Labour Court under the Industrial Relations Acts. The procedures will then be assessed having regard to the the LRC Code of Practice on Disciplinary and Grievance Procedures (SI No 146/2000).

If the procedures are not in line with this Code of Practice, or have not been properly applied, the disciplinary action may be struck down.

However, if he does not sign the letter that , in itself, may give rise to an assertion on the part of the Company that he is not engaging with the Company. This may, in itself, give rise, to further disciplinary action.

I would suggest that he refer the matter to a Rights Commissioner / Labour Court and then sign the letter - specifically directing that he signing the letter under protest and without prejudice to his claim under the Industrial Relations Acts

 

[shipibo]

The Unfair dismissals act allows an employer to justify a dismissal providing they can prove it occurred for a number of reasons. These include the capability and competence of the employee

Competence can be one of the more difficult reasons to prove as the employee can have a number of counter arguements. The employer has to be able to justify what can often be a subjective measurement, the employer must have made the employee aware of the issue(which has happened in this case). The employee can also claim that the reason for the poor performance was not their own ability(or lack of it) but down to such things as lack of company support/training in the job etc

Worth noting as well that a dismissal is deemed to be unfair until the employer proves othersie

Go raibh maith agat Mpsox,

Did not know this was covered ....

 

[shipibo]

The employee is not being sacked. The letter is clearly a warning / improvement letter. Therefore the Unfair Dismissals Acts do not apply because there is no dismissal.

Cut from employer letter Valhalla posted

"If, during that period, we do not see a significant improvement in these areas we will have no alternative but to terminate your employment with xxxxxx. After the 3 month period has expired we will carry out a review to confirm your future status with this company."

As you have stated, employee has many avenues, but do not beleive emplyee should sign anything ..