Disciplined procedure is the only procedure

Shockwaves reverberated through the business community recently when it was revealed that US executive Dan Rodgers, had taken about £4 million (€5.1 million) from Esat Telecom arising from his unfair dismissal claim against the company.

Having allegedly been "love bombed" by the company's chairman Denis O'Brien, something obviously went awry in the performance management process.

Beyond the enormity of the settlement, the Esat case was not unusual - an estimated 1,000 unfair dismissal claims are initiated annually. The organisations that have found themselves at the wrong end of dismissal claims in the courts read like a Who's Who of eminent employers, including AIB, Dunnes Stores, General Motors, the Gresham Hotel, Dublin Corporation, Lisney & Son, the Irish Productivity Centre and Quinnsworth.

To ensure you do not fall foul of the Unfair Dismissals Act 1977-93 it is important to remember that the burden of proof is usually on the employer. That is, the employer must be able to show that he or she has acted reasonably in the circumstances.

A key determinant applied by the Employment Appeals Tribunal in this respect is whether the employer followed fair and proper procedures before the dismissal. Disciplinary interviewing is often as stressful and daunting a task for the manager as it is for the employee. The fear of making a mess of it, damaging a good working relationship, or being found guilty of unfair dismissal in court is enough to damage your health.

The primary purpose of a disciplinary procedure is to help an employee to improve. This focus should significantly influence the manner and tone of the inquiry and subsequent actions.

An inadequate investigation may result in a dismissal being deemed unfair. Accordingly, the employer should undertake a proper inquiry before a decision to dismiss or discipline.

In practice, the interview must allow the employee to present his or her point of view. A constructive discussion should aid assessment of culpability, deciding appropriate action and attempts to effect the desired change in the employee's behaviour.

Under the Code of Practice on Disciplinary Procedures issued by the Minister for Enterprise and Employment, staff are entitled to representation at such disciplinary hearings. This could be a colleague and an authorised trade unionist, but not any other person unconnected with the enterprise, for example the local solicitor.

The code also emphasises the "principles of natural justice". First, details of the allegation must be put to the employee. Second, they should be given time to respond. Ignoring these "golden rules" is likely to leave the relevant disciplinary action void or the dismissal unfair.

A recent study at the University of Manchester suggests that the key factor frequently leading to unfair dismissal determinations was that employees were not given a chance to defend themselves.

Consequently, to get the best out of the disciplinary procedure proceed with caution. For example, decide the best time for the interview. This should be close to the incident with an appropriate "cooling off" period. This will also enable one to do the preparatory work.

If the offence is deemed serious, the employee should be advised immediately in the presence of their representative, given a chance to respond and suspended pending investigation. This should be with pay. When a thorough inquiry is completed, the interview can go ahead.

Now the research begins. Rigorous preparation will help management avoid mistakes. Having completed the inquiry it will be decided that no action should be taken, or one can settle for an informal counselling session.

Plan the interview structure and key questions in advance. Write down all the facts and be prepared to substantiate them. Decide on the personnel to be involved. The code also recommends that employees be allowed to question witnesses.

Do not intimidate the employee so that his/her story is only heard when told by a legal representative at the Employment Appeals Tribunal. By the end of the disciplinary meeting parties should have established what happened to whom, where, when, how and why.

Find out if there is any mitigating evidence. The action to be taken depends on the circumstances and the seriousness of the offence. The final decision to discipline or dismiss must reflect such considerations, or else it is likely to fail the "test of reasonableness" when applied by a Rights Commissioner or the tribunal.

Finally, summarise the situation. This will reflect the key points of management's case, the employee's reply, the changes to management's original case that have arisen during the meeting, the circumstances pertaining to the case as it now stands and the matters for investigation during the adjournment. Having reconvened the meeting after such an adjournment the decision should be conveyed that is warn or withdraw.

If the evidence points toward disciplinary action, management's position should be explained to the employee. Outline the nature of the improvement required and how to reach it along with the consequence of future transgressions.

At the end of the disciplinary interview management will have outlined the nature of the improvement required and the means for its achievement. Having recorded the details, the employee's performance or conduct should be monitored, to ensure problems do not recur.

Try to prevent relationships deteriorating. Disciplinary action can be a source of discomfort, disrupted relationships and resentment. While management's final action may be fair and reasonable in the circumstances, it is unlikely to appeal to staff.

Ultimately, management's ability to handle disciplinary and dismissal matters fairly and professionally may affect not just dismissals procedure but, more importantly, how to retain those who dislike the warning signs associated with management's mishandling of delicate matters.

Dr Gerard McMahon is a lecturer at the Faculty of Business, Dublin Institute of Technology. Email: ppl1@indigo.ie