DEALING WITH DEALING WITH DISCIPLINARY DISCIPLINARY

ISSUESISSUES

CONTENTS:CONTENTS:

1.1. Principles of natural justicePrinciples of natural justice

2. 2. What comes up for VBOM and StaffWhat comes up for VBOM and Staff

3. 3. What constitutes a disciplinary issue What constitutes a disciplinary issue & gross misconduct& gross misconduct

4. 4. Key points to remember when dealing with Key points to remember when dealing with disciplinary issuesdisciplinary issues

5. 5. Preparation for decision to take disciplinary actionPreparation for decision to take disciplinary action

6. 6. Formal disciplinary stagesFormal disciplinary stages

7. 7. Preparation and running of disciplinary meetingsPreparation and running of disciplinary meetings..

8. Appeals Procedure8. Appeals Procedure

1. PRINCIPLES OF 1. PRINCIPLES OF NATURAL JUSTICENATURAL JUSTICE

A COURT OR TRIBUNAL A COURT OR TRIBUNAL

WOULD LIKELY CONSIDER WOULD LIKELY CONSIDER

ANY PROCEDURES, WHICH ANY PROCEDURES, WHICH

ARE LESS BENEFICIAL TO ARE LESS BENEFICIAL TO

AN EMPLOYEE, AN EMPLOYEE, UNFAIRUNFAIR..

(Emphasis will be on the Employer to prove (Emphasis will be on the Employer to prove they acted fairly).they acted fairly).

STANDARDS OF PROCEDURAL FAIRNESS MEANS THE EMPLOYEE

HAD……

1. NOTICE OF AND UNDERSTOOD THE CASE AGAINST HER / HIM

3. THE OPPORTUNITY TO HAVE SOMEONE ACCOMPANY THEM

2. THE RIGHT TO REPLY TO ACCUSATIONS

4. THE OPPORTUNITY TO IMPROVE PERFORMANCE& CONDUCT

5. THE RIGHT TO HAVE THE CASE HEARD WITHOUT PREJUDICE

6. THE RIGHT TO APPEALTHE DECISIONMADE

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 INVESTIGATIONTOOK PLACE

THE EMPLOYMENT APPEALS THE EMPLOYMENT APPEALS TRIBUNAL (E.A.T.) IN TESTING THE TRIBUNAL (E.A.T.) IN TESTING THE

FAIRNESS OF A DECISION TO FAIRNESS OF A DECISION TO DISMISS, WILL MEASURE EITHER DISMISS, WILL MEASURE EITHER

THE THE

PROCEDURES / OR / THE LACK OF PROCEDURES / OR / THE LACK OF PROCEDURES…PROCEDURES…

AGAINST THE STATUTORY CODEAGAINST THE STATUTORY CODE

EMPLOYERS SHOULD HAVE EMPLOYERS SHOULD HAVE DISCIPLINARY PROCEDURES IN DISCIPLINARY PROCEDURES IN

PLACE BUT ALSO NEED TO PLACE BUT ALSO NEED TO FOLLOW THESE PROCEDURES FOLLOW THESE PROCEDURES

CONSISTENTLY WHEN CONSISTENTLY WHEN DISCIPLINING ANY EMPLOYEEDISCIPLINING ANY EMPLOYEE..

THE BEST SOLUTION TO THE BEST SOLUTION TO DEALING WITH DISCIPLINARY DEALING WITH DISCIPLINARY

ISSUES IS……..ISSUES IS……..

• PREVENTION ~ PREVENTION

PREVENTION !!!!!!

• ACTING FAIRLY & STICKING WITH PROCEDURES

• KEEPING ACCURATE RECORDS

2. WHAT COMES UP FOR 2. WHAT COMES UP FOR VOLUNTARY BOARD OF VOLUNTARY BOARD OF

MANAGEMENT AND MANAGEMENT AND STAFF WHEN DEALING STAFF WHEN DEALING

WITH DISCIPLINARY WITH DISCIPLINARY ISSUESISSUES

SOME ISSUES FOR VBOM OR SOME ISSUES FOR VBOM OR SUPERVISORSUPERVISOR

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 EMPLOYEESSOME ISSUES FOR EMPLOYEES

• Feelings of being picked on.Feelings of being picked on.

• Insecure in there own work performance.Insecure in there own work performance.

• False sense or lack of awareness of their own False sense or lack of awareness of their own difficulties in performance at workdifficulties in performance at work

• Incapable of changing / meeting the required Incapable of changing / meeting the required standard.standard.

• Regretful and apologetic for their past Regretful and apologetic for their past performance.performance.

• Angry at the supervisor, Project, and or Angry at the supervisor, Project, and or VBOM VBOM

3. WHAT IS3. WHAT ISA DISCIPLINARYA DISCIPLINARY

ISSUE……..ISSUE……..

EXAMPLES OF EXAMPLES OF MIS-CONDUCT & MIS-CONDUCT &

GROSS MIS-CONDUCTGROSS MIS-CONDUCT

EXAMPLES OF MIS-CONDUCTEXAMPLES OF MIS-CONDUCT

Consistently poor attendance / time keeping or lateness.Consistently poor attendance / time keeping or lateness. Failure to follow procedures re sick leave or injury.Failure to follow procedures re sick leave or injury.

Negligence in the performance of duties.Negligence in the performance of duties. Being absent without reasonable permission or excuse.Being absent without reasonable permission or excuse.

Deliberate breach of safety rules.Deliberate breach of safety rules. With holding of info which obstructs the work of the With holding of info which obstructs the work of the

project.project. Bringing the organisation into disrepute.Bringing the organisation into disrepute.

Breach of confidentiality.Breach of confidentiality. Consistent non-co-operation with other staff, direct Consistent non-co-operation with other staff, direct

supervisor or VBOM.supervisor or VBOM. Breach of the organisations policies and proceduresBreach of the organisations policies and procedures

Miss-use of computer / email / internet in projects timeMiss-use of computer / email / internet in projects time

EXAMPLES OF GROSS MIS-CONDUCTEXAMPLES OF GROSS MIS-CONDUCT

Unauthorised use of assets and equipment.Unauthorised use of assets and equipment. Sexual harassment, harassment or bullying.Sexual harassment, harassment or bullying.

Refusal to carry out duties or obey reasonable Refusal to carry out duties or obey reasonable instruction (except where it impacts on a workers instruction (except where it impacts on a workers

safety).safety). Theft or unauthorised possession of another Theft or unauthorised possession of another

employees / the projects property.employees / the projects property. Malicious mischief resulting in danger to fellow Malicious mischief resulting in danger to fellow

employees.employees. Consumption of alcohol or drugs.Consumption of alcohol or drugs.

Possession of illegal substances whilst on the Possession of illegal substances whilst on the premises.premises.

Violent, threatening or bullying behaviour.Violent, threatening or bullying behaviour. Inappropriate use of email, internet or computer Inappropriate use of email, internet or computer

systems re pornography / child abuse.systems re pornography / child abuse. Serious breaches of terms and conditions.Serious breaches of terms and conditions.

Falsification of records / accounts / expenses / Falsification of records / accounts / expenses / reports.reports.

Gambling or money lending etc.. Gambling or money lending etc..

4. KEY POINTS TO 4. KEY POINTS TO REMEMBER WHEN REMEMBER WHEN

DEALING WITH DEALING WITH DISCIPLINARY ISSUESDISCIPLINARY ISSUES

4.1 At the core of any project is the need for satisfactory 4.1 At the core of any project is the need for satisfactory standards of performance and behaviour from all staff. standards of performance and behaviour from all staff. Staff should be informed o what is acceptable during Staff should be informed o what is acceptable during

their induction period.their induction period.

4.2 Important to have fair and equitable disciplinary 4.2 Important to have fair and equitable disciplinary proceduresprocedures

4.3 Disciplinary procedures should be available in writing 4.3 Disciplinary procedures should be available in writing to all staff within 28 days of starting workto all staff within 28 days of starting work

4.4 Objective of the procedures is not to impose 4.4 Objective of the procedures is not to impose punishment but to allow a mechanism which gives punishment but to allow a mechanism which gives

employees time to improve performance or conduct.employees time to improve performance or conduct.

4.5 A dismissal should only arise when all efforts to 4.5 A dismissal should only arise when all efforts to improve performance or conduct have been exhausted. improve performance or conduct have been exhausted.

4.6 It is important to understand the implications of taking 4.6 It is important to understand the implications of taking any form of disciplinary action and the procedural any form of disciplinary action and the procedural

requirements.requirements.All incidents and efforts to bring about change must be All incidents and efforts to bring about change must be

recordedrecorded and dated. and dated.

4.7 It is important to always have two project 4.7 It is important to always have two project representatives in attendance.representatives in attendance.

4.8 At all stages it is important to discuss and / or seek 4.8 At all stages it is important to discuss and / or seek legal advise from your solicitor.legal advise from your solicitor.

4.9 Boundaries between managing performance and 4.9 Boundaries between managing performance and taking disciplinary action are often confused. If taking disciplinary action are often confused. If

attendance, time-keeping or competency levels slip, attendance, time-keeping or competency levels slip, and no action is taken, employees may assume that and no action is taken, employees may assume that

such behaviours are ok.such behaviours are ok.

It is therefore important to take informal action on It is therefore important to take informal action on early indicators and provide feedback on what is early indicators and provide feedback on what is

acceptable and unacceptable behaviour or acceptable and unacceptable behaviour or performance.performance.

4.10 As a result, performance levels will be back in line 4.10 As a result, performance levels will be back in line more quickly and the project can build on the more quickly and the project can build on the

strengths and the positive relationship with the strengths and the positive relationship with the employee. This reduces the incidence of using the employee. This reduces the incidence of using the

formal elements of the disciplinary procedure.formal elements of the disciplinary procedure.

4.11 In some cases it may be necessary to use the 4.11 In some cases it may be necessary to use the disciplinary procedures and this should not be considered a disciplinary procedures and this should not be considered a

failure on the part of the project.failure on the part of the project.

4.12 Legal protection for unfair dismissals comes into force 4.12 Legal protection for unfair dismissals comes into force at the end of one year’s service.at the end of one year’s service.

4.13 The employee 4.13 The employee must alwaysmust always be kept informed in writing be kept informed in writing of what is happening and be clear after leaving each of what is happening and be clear after leaving each

disciplinary meeting what the implications are if disciplinary meeting what the implications are if improvement does not happen.improvement does not happen.

4.14 It is important to know how to use the probationary 4.14 It is important to know how to use the probationary period to deal with poor performance, breaches of period to deal with poor performance, breaches of

procedures or poor selection decisions at the early stages.procedures or poor selection decisions at the early stages.

4.15 However, employers are required to provide all 4.15 However, employers are required to provide all employees with details of the disciplinary procedures within employees with details of the disciplinary procedures within

28 days of starting work.28 days of starting work.

5. HOW YOU NEED TO 5. HOW YOU NEED TO PREPARE BEFORE MAKING PREPARE BEFORE MAKING THE FINAL DECISION TO THE FINAL DECISION TO INSTIGATE DISCIPLINARY INSTIGATE DISCIPLINARY

PROCEDURESPROCEDURES

5.1 WORK WITH RSA / SEEK LEGAL ADVICE5.1 WORK WITH RSA / SEEK LEGAL ADVICE

5.2 GATHERING INFORMATION:5.2 GATHERING INFORMATION: Such as collating the evidence of poor performance re Such as collating the evidence of poor performance re

supervision records, time sheets, operational plans / supervision records, time sheets, operational plans / targets set and not met etc..targets set and not met etc..

5.3 CARRYING OUT INVESTIGATION OF 5.3 CARRYING OUT INVESTIGATION OF PARTICULAR INCIDENT:PARTICULAR INCIDENT:

This could be in relation to gross miss-conduct. The This could be in relation to gross miss-conduct. The employee must be made aware that this is employee must be made aware that this is

happening. Should be undertaken by a neutral happening. Should be undertaken by a neutral person / persons and written up objectively and all person / persons and written up objectively and all parties who witnessed this should be interviewed.parties who witnessed this should be interviewed.

5.4 ASSESSMENT IF THERE IS ADEQUATE GROUNDS 5.4 ASSESSMENT IF THERE IS ADEQUATE GROUNDS FOR DISCIPLINARY ACTION REMEMBERING TO TAKE FOR DISCIPLINARY ACTION REMEMBERING TO TAKE

INTO CONSIDERATION THE FOLLOWINGINTO CONSIDERATION THE FOLLOWING::

• That Projects standards have been made clear.That Projects standards have been made clear.• Rules, regulations, and procedures have been defined.Rules, regulations, and procedures have been defined.

• Employee has been made aware of the disciplinary procedures.Employee has been made aware of the disciplinary procedures.• Has the disciplinary procedure been used to address a similar Has the disciplinary procedure been used to address a similar

issue in the past.issue in the past.• The employee has previously been told that they have to The employee has previously been told that they have to

improve on performance.improve on performance.

5.5 MAKE DECISION AS TO NEXT STEPS5.5 MAKE DECISION AS TO NEXT STEPS

If it is to initiate disciplinary action then you must follow If it is to initiate disciplinary action then you must follow consistently you procedures right through to the final stage consistently you procedures right through to the final stage

acting as fairly as possible and keeping the situation confidential acting as fairly as possible and keeping the situation confidential and professional. and professional.

6. FORMAL STAGES OF THE 6. FORMAL STAGES OF THE DISCIPLINARY PROCESSDISCIPLINARY PROCESS

FOUR STAGES FOR DEALING WITHFOUR STAGES FOR DEALING WITHONGOING MISS-CONDUCTONGOING MISS-CONDUCT

STAGE 1:STAGE 1: FIRST VERBAL WARNINGFIRST VERBAL WARNING

STAGE 2:STAGE 2: FIRST WRITTEN WARNINGFIRST WRITTEN WARNING

STAGE 3:STAGE 3: FINAL WRITTEN WARNINGFINAL WRITTEN WARNING

STAGE 4:STAGE 4: DISMISSAL DISMISSAL

BEFORE GIVING THE 1BEFORE GIVING THE 1stst VERBAL VERBAL WARNING THE EMPLOYEE SHOULD BE:WARNING THE EMPLOYEE SHOULD BE:

Told that their work / behaviour has fallen below an Told that their work / behaviour has fallen below an acceptable level and be made aware that this is acceptable level and be made aware that this is

unacceptable.unacceptable.

This should be recorded at a support and supervision This should be recorded at a support and supervision meeting and employee has the right to see it etc.meeting and employee has the right to see it etc.

Advised of how improvements can be made and given Advised of how improvements can be made and given a period of time to improve their work / behaviour / a period of time to improve their work / behaviour /

attendance.attendance.

Informed of the likely consequences if there is a lack Informed of the likely consequences if there is a lack of improvement i.e. Formal disciplinary procedures of improvement i.e. Formal disciplinary procedures

Advised to read the projects disciplinary proceduresAdvised to read the projects disciplinary procedures

Given adequate notice of any subsequent meetings Given adequate notice of any subsequent meetings and informed of their right to bring someone with themand informed of their right to bring someone with them

STAGE 1:STAGE 1: FIRST VERBAL WARNINGFIRST VERBAL WARNINGIF THERE ISN’T IMPROVEMENT IN THE EMPLOYEE’S BEHAVIOUR IF THERE ISN’T IMPROVEMENT IN THE EMPLOYEE’S BEHAVIOUR

BY A SPECIFIED TIME, THE FORMAL VERBAL WARNING IS BY A SPECIFIED TIME, THE FORMAL VERBAL WARNING IS ISSUED. PROPER NOTIFICATION MUST BE GIVEN OF THIS.ISSUED. PROPER NOTIFICATION MUST BE GIVEN OF THIS.

THE FIRST VERBAL WARNINGS SHOULD STATE CLEARLY:THE FIRST VERBAL WARNINGS SHOULD STATE CLEARLY:

• How the employee has dropped in acceptable standards.How the employee has dropped in acceptable standards.• What improvement is required and by when. What improvement is required and by when.

• An agreed plan for assistance.An agreed plan for assistance.• How long this written warning will stay in the employees files.How long this written warning will stay in the employees files.• Notification of what will happen if there is no improvement by Notification of what will happen if there is no improvement by

the specified review date.the specified review date.(This will need to be put in writing to the employee after you have had (This will need to be put in writing to the employee after you have had

the meeting)the meeting)

IF THERE IS NO IMPROVEMENT BY THE DATE SET FOR THE NEXT IF THERE IS NO IMPROVEMENT BY THE DATE SET FOR THE NEXT REVIEW THE PROJECT WILL MOVE ONTO REVIEW THE PROJECT WILL MOVE ONTO

STAGE 2:STAGE 2: First Written Warning First Written Warning

STAGE 2:STAGE 2: FIRST WRITTEN WARNINGFIRST WRITTEN WARNING

THIS WILL REQUIRE THE PROJECT TO PUT THE FOLLOWING IN THIS WILL REQUIRE THE PROJECT TO PUT THE FOLLOWING IN WRITING:WRITING:

What the initial concerns were.What the initial concerns were. Details of how the employee’s progress has not beenDetails of how the employee’s progress has not been

satisfactory.satisfactory.The improvements required and by when.The improvements required and by when.

Any agreed plan for assistance.Any agreed plan for assistance. How long this written warning will stay in the employees How long this written warning will stay in the employees

files.files. Notification of what will happen if there is no Notification of what will happen if there is no

improvement by the specified review date.improvement by the specified review date.

IF THERE IS NO IMPROVEMENT BY THE DATE SET FOR THE IF THERE IS NO IMPROVEMENT BY THE DATE SET FOR THE NEXT REVIEW THE PROJECT WILL MOVE ONTO NEXT REVIEW THE PROJECT WILL MOVE ONTO

STAGE 3:STAGE 3: First Written Warning First Written Warning

STAGE 3:STAGE 3: FINAL WRITTEN WARNINGFINAL WRITTEN WARNING

IF, AT THE DATE OF THE AGREED REVIEW MEETING THAT IF, AT THE DATE OF THE AGREED REVIEW MEETING THAT PROGRESS IS STILL UNSATISFACTORY, THE EMPLOYEE PROGRESS IS STILL UNSATISFACTORY, THE EMPLOYEE WILL RECEIVE A FINAL WRITTEN WARNING SPECIFYING WILL RECEIVE A FINAL WRITTEN WARNING SPECIFYING THE SAME AS IN STAGE 2, WHICH WILL REMAIN ACTIVE THE SAME AS IN STAGE 2, WHICH WILL REMAIN ACTIVE ON THEIR PERSONNEL FILE FOR A SPECIFIED PERIOD OF ON THEIR PERSONNEL FILE FOR A SPECIFIED PERIOD OF

TIME. TIME.

THE FINAL PART OF THE LETTER SHOULD STATE THAT A THE FINAL PART OF THE LETTER SHOULD STATE THAT A REPEAT OF THE OFFENCE OR A PERSISTENT LACK OF REPEAT OF THE OFFENCE OR A PERSISTENT LACK OF

PROGRESS BY THE NEXT REVIEW MEETINGPROGRESS BY THE NEXT REVIEW MEETING WILL LEAD TO WILL LEAD TO DISMISSAL.DISMISSAL.

STAGE 4:STAGE 4: DISMISSALDISMISSAL

DISMISSAL SHOULD BE CONFIRMED IN DISMISSAL SHOULD BE CONFIRMED IN WRITING AND SHOULD BE WITHIN THE WRITING AND SHOULD BE WITHIN THE TERMS OF THE MINIMUM NOTICE AND TERMS OF THE MINIMUM NOTICE AND

TERMS OF CONDITIONS ACT. TERMS OF CONDITIONS ACT.

THIS LETTER SHOULD ALSO STATE THE THIS LETTER SHOULD ALSO STATE THE GROUNDS FOR THE ACTION TAKEN. GROUNDS FOR THE ACTION TAKEN.

7. FACILITATION OF A 7. FACILITATION OF A DISCIPLINARY DISCIPLINARY

MEETINGMEETING

7.1 OPENING THE MEETING7.1 OPENING THE MEETING Ensure all parties are introducedEnsure all parties are introduced

Clarify the role of the employee representative re listening Clarify the role of the employee representative re listening on behalf of the employee / If employee has not brought one , on behalf of the employee / If employee has not brought one ,

find out why and record reasons.find out why and record reasons. Explain that you will be taking notes and that you will be Explain that you will be taking notes and that you will be

adjourning the meeting for a period of time to reach final adjourning the meeting for a period of time to reach final decisions once all the information has been heard.decisions once all the information has been heard.

7.2 EXPLAIN THAT THE PURPOSE OF THE MEETING IS TO:7.2 EXPLAIN THAT THE PURPOSE OF THE MEETING IS TO: Initiate a disciplinary procedure / refer to letter sent.Initiate a disciplinary procedure / refer to letter sent.

Check that the information gathered re disciplinary issues is Check that the information gathered re disciplinary issues is accurate.accurate.

Give the employee and opportunity to respond to questions.Give the employee and opportunity to respond to questions. Allow the employee to share any relevant mitigating Allow the employee to share any relevant mitigating

circumstances.circumstances. To agree a performance plan / target / agree next stepsTo agree a performance plan / target / agree next steps

7.3 HEAR THE EVIDENCE:7.3 HEAR THE EVIDENCE:

Hear from employees perspective / ask questions / share Hear from employees perspective / ask questions / share information from investigation (if one was undertaken) / information from investigation (if one was undertaken) /

invite comments / ask the employee and their representative invite comments / ask the employee and their representative if they have anything to say in the workers defenceif 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.

8. APPEALS 8. APPEALS PROCEDURESPROCEDURES

EMPLOYEES HAVE THE RIGHT TO APPEAL EMPLOYEES HAVE THE RIGHT TO APPEAL THE PROCEEDURE, IN WHICH CASE:THE PROCEEDURE, IN WHICH CASE:

An Appeals Panel will need to be An Appeals Panel will need to be established from other members of the established from other members of the VBOM and they will have to go through VBOM and they will have to go through an independent investigation into the an independent investigation into the situation / meet with worker / reach a situation / meet with worker / reach a decision to up-hold the disciplinary decision to up-hold the disciplinary

process or change it.process or change it.

Other supports could be utilised such as Other supports could be utilised such as the Labour Rights Commission / this is a the Labour Rights Commission / this is a

free service / information on another free service / information on another presentationpresentation