Strange though it may seem, adherence to procedure is influential in the majority of third-party dismissal determinations. Indeed, such judgements frequently focus more on the procedural provisions than the case’s merits. Not surprisingly then, in 2015 the Workplace Relations Commission (WRC) issued instructions to employers availing of their services in dismissal cases that - prior to hearing - they: 

‘… must set out the facts of the events leading to the dismissal including, where relevant, disciplinary meeting(s) held, investigation undertaken, disciplinary hearing(s) conducted, internal appeal(s) conducted ...’

This instruction goes to the heart of many unfair dismissal judgements, as the Courts have always taken the view that procedural fairness is a key dimension in its determinations. Consequently, to get the best out of the all-important hearing and to avoid unfavourable findings down the road, it is advisable that disciplinary interviewers adhere to the following guidelines, which are categorised into the BEFORE, DURING and AFTER stages of the interview:

Before

1. An inadequate investigation of a situation on the part of the employer may give rise to a dismissal or disciplinary action being deemed unfair. Accordingly, a reasonable and fair investigation of the matter should be undertaken by the employer, prior to a decision to initiate disciplinary proceedings or dismissal. An appropriate investigation will entail checking the facts of the case (i.e. who? where? when? why? what? how? ‘it is’\facts vs ‘I think it is’\assumptions?), the range of relevant documents on the employee’s personnel file (e.g. previous warnings, training received, appraisal records), the required and average performance standards on the job and the organisation’s disciplinary procedure and precedents. Rigorous preparation at this point helps avoid embarrassment later. Indeed, it may be that having completed the investigation, one decides to take no action or to settle for an informal ‘off the record’ counselling session. In the event of Stage 1 of the organisation’s procedure being a ’counselling’ interview, one may opt to resort to it if the earlier ‘off-the-record’ intervention has failed - should an identical or similar offense be repeated.

2. Decide on the best time for the disciplinary interview. Depending on the nature of the alleged offence, this will normally be close to the incident. However, it shouldn’t compromise management’s responsibility to do the all-important preparatory\investigative work. In some instances, a ’cooling off’ period may be required, to ensure that parties approach the interview rationally rather than emotionally.

If the alleged offense is adjudged to be of a serious nature, it is advisable that the employee be advised immediately of the situation in the presence of their representative, given a chance to respond and they may even be suspended or placed on ‘administrative leave’ pending the investigation into the alleged misconduct. This should normally be with pay. When a thorough investigation is completed, the interview can proceed.

3. Plan the interview structure and the key questions. Write down all of the facts and be prepared to substantiate them and all of the assumptions and be prepared to inquire into them.

4. Decide on the personnel to be involved. Where issues have reached a serious stage, at least two management representatives should be present, to ensure correct and consistent application of the rules and procedures. One should also be clear as to who has the authority to formally warn or dismiss staff. The Government-issued Code of Practice on Grievance and Disciplinary Procedures recommends – in addition to the employee’s right to be accompanied by a representative - that the employee concerned be allowed to confront or question witnesses. Notably, a recent High Court judgement indicates that where serious allegations are being made – that could result in dismissal or reputational damage - a right to legal representation also applies.

5. Advise the employee of the time, place and purpose – if appropriate, with supporting evidence from the investigation - of the interview and the aforementioned representation entitlement.

6. Allow enough time - as you never know what will surface in the course of such a delicate, yet potentially explosive meeting - and prohibit interruptions. Ensure that the physical lay-out of the room is appropriate to the purpose of and numbers attending the meeting.

During

1. Don’t be cosy, yet don’t be rude - strike the right balance. In any interview, the interviewee deserves a fair hearing. You don’t want to intimidate the employee to the extent that you only hear his/her side of the story when it’s told by his/her legal representative at the WRC or the Labour Court. At that stage, it may be too late and too costly.

2. Remain calm throughout the meeting, whatever the provocation or personal jibes. This should help one to see the key issues in a more objective light.

3. Deliver the opening statement. This can take the form of advising those present that (without pre-judgement) it is an interview under the organisation’s disciplinary procedure, the stage of the procedure one is at, one’s role relative to the procedure and the function of other people present, including ‘on call’ witnesses. The structure of the meeting should then be outlined.

4. The structure of the meeting entails the aforementioned opening statement and posing questions. The employee and their representative will then reply, question witnesses and produce their own witnesses. One can then further question the employee and his/her witnesses. The employee should be encouraged to highlight any issues they consider important, including any mitigating circumstances.

5. Use open-ended questions to elicit information, and probing and close-ended questions for clarification and to eliminate evasions. The questioning style and presentation of the case should be neutral, creating an invitation to respond. By the end of the meeting, management will want to have established what happened to whom, where, when, why and how.

6. Determine whether there is any mitigating evidence. The action that management takes depends on the circumstances and the seriousness of the offense. When determining the action to be taken, the test of ’reasonableness’ must be borne in mind and should take account of the mitigating factors. This means that every situation must be evaluated on its own merits.

7. Summarise, to ensure that everyone understands the key issues and then adjourn the meeting. This summary should reflect the key points of the original case, the employee’s reply, the changes to the original case that have arisen during the meeting, the circumstances pertaining to the case as it now stands and the matters warranting consideration or further investigation during the adjournment. Adjournments should always be for the minimum amount of time necessary to allow checks that have to be conducted and for parties to confer, consider all of the issues and decide on the most appropriate action.

8. Reconvene the meeting and convey the decision. At the end of the reconvened meeting, summarise the outcome and action to be taken. Should the evidence point toward disciplinary action, management’s position should be explained to the employee, who should be made fully aware of his/her shortcomings, the nature of the improvement required and the means for its achievement, together with the consequences of future transgressions. This is also an appropriate time to remind parties of the right to appeal the decision.

9. If it is established that there is no case, the employee should be provided with a full explanation as to why it is not being taken any further. This explanation should be neither defensive nor apologetic. An effectively handled withdrawal from the disciplinary process can enhance the image of the organisation and its disciplinary system as investigative-oriented and fair.

After

1. Write up your records, advise relevant personnel and send copies to appropriate parties (e.g. H.R. Dept., employee, representative). Accurate records should be kept of all disciplinary issues. The more detail the better, but in particular they should set down dates, parties involved, the original case, the changes to that case arising in the proceedings, management’s action and its relationship to previous actions, and the particular circumstances of the case and how they affected the final action. At the counselling stage, a brief note of the issue, the individual concerned and the date and nature of the discussion would suffice. At verbal, written and all subsequent warning stages, the records should be more elaborate - including reference to what has been done ’to put things right’ and confirmation that parties were advised (in writing) of the right of appeal.

2. Monitor the employee’s performance or conduct in an attempt to ensure that any shortcoming doesn’t recur.

3. Work at trying to prevent relationship(s) deteriorating. Disciplinary action can be a source of discomfort and resentment. Whilst management’s final action may be fair and reasonable in the circumstances, it may not endear one to staff. Hence, the disciplinary action should be followed up, to ensure that the problem does not arise again. Nor should management gloat over their handling of the problem, but should make positive efforts to consolidate the all-important ongoing working relationship(s).

4. Wipe the slate clean in due course (if appropriate). Warnings should remain on an employee’s record for as long as is consistent with the nature of the offense in accordance with organisational rules and practice. Minor warnings tend to have a shorter time scale than those relating to more serious issues. 

Summary Checklist: How to... Conduct A Disciplinary Interview

• Research carefully and (subject to the principles of natural justice) confidentially, conscious of the obligation for a reasonable and fair investigation of the matter.
• Plan the disciplinary interview structure and the key questions.
• Decide on the personnel to be involved and advise the interviewee of the time, place and purpose of the interview and their representation entitlement.
• Keep calm and deliver the meeting’s scene-setting opening statement.
• Allow the employee and their representative to respond, question witnesses, produce their own witnesses and outline any mitigating circumstances.
• Summarise - reflecting the key points of the original case, the reply, changes emerging during the meeting, relevant circumstances pertaining and matters for consideration\investigation during the adjournment.
• At the end of the meeting summarise the outcome and action to be taken - warn or withdraw – and note the right of appeal.
• Write up your records, advise the relevant personnel and send copies to the appropriate parties.
• Outline the improvement required and monitor the performance or conduct in an attempt to ensure that any shortcomings don’t recur.
• Work at trying to prevent relationship(s) deteriorating and wipe the slate clean in due course.