Conducting a disciplinary process: pt. 2

Contributed by, Dylan Downes, Labour Management Advisor, 30th August 2021

This week we examine in detail how to effectively conduct a hearing. Many human resource professionals and persons in organizations with a history of unionization have a strong understanding of how a disciplinary hearing should be conducted. However, the Employment Rights Act 2012-9 (ERA) requires that all persons regardless of size to become familiar with the process. This article will explore some specific steps for conducting disciplinary hearings.

At the start of the hearing, the chair should introduce those present and if the employee is unaccompanied, remind the employee of his/her right to be accompanied. The employee should be asked to confirm that they have received the applicable disciplinary procedure and copies of any documentation. Any minutes or note-taking arrangements should be discussed and confirmed prior to proceeding.

Following this, the allegations should be explained in detail and review supporting the evidence. The employee, should be invited to ask any questions and given a reasonable opportunity to present their version of what transpired and produce any supporting evidence, including calling any witnesses if they have given advance notice of their intention to do so.

Once both sides of the case have been presented the hearing should be adjourned to allow for deliberation. Issues that have been raised may require further investigation and witnesses may need to be re-interviewed. Any new evidence should be given in writing to the employee and the employee given the opportunity to attend a re-convened meeting. The length of the adjournment depends on the complexity of matters and employers should not pre-judge cases.

An employer must conduct the disciplinary procedure fairly and reasonably. However, if considering dismissal, they must ensure a genuine belief, based on reasonable grounds, that the employee is guilty of misconduct or violation and that any decision to dismiss is fair and reasonable in all the circumstances. It is important that any discipline is proportionate to the offence so as not to breach the duty of trust and confidence. When deciding the appropriate penalty employers can consider any active warnings or cautionary memos in an effort to show a particular trend/pattern of a behavior etc.

If considering dismissal, the employer should ensure that there is no other reasonable alternative available, such as a final written warning or suspension without pay, before making the final decision to dismiss. Once the decision is made the employee must be informed in writing, without unreasonable delay of the employer’s decision and their right of appeal. The letter confirming the decision to dismiss should clearly set out the following:

• the allegations against the employee
• the findings, the factual basis and the reasons the employer has reached the decision to dismiss
• refer to any previous warnings, confirm the termination date and whether their employment is terminated with or without notice
• whether a payment in lieu of notice will be made or whether the employer considers that there is no notice entitlement because the employee has been dismissed for gross misconduct
• outstanding holiday entitlement up to the termination date
• provide instructions on how to appeal, including who the appeal should be forwarded to and the deadline for doing so.

The right of appeal is found in Fourth Schedule of the ERA. Employers should always consider the surrounding circumstances when considering whether to accept an appeal after the stipulated deadline to submit such a request in writing. So far as is possible the appeal should be dealt with by someone who has not been part of the process and who is more senior than the person who conducted the disciplinary hearing.

At the appeal meeting the employee should be asked to state their full grounds of appeal so that a decision can be taken whether the appeal will be a review of the decision and evidence of the original hearing or whether it will be full rehearing. The chair of the appeal should have access to all of the evidence from the original hearing but should not confer with the original decision makers prior to the hearing. It is possible that procedural defects in an initial disciplinary hearing may be remedied on appeal, provided that the appeal is sufficiently comprehensive. Ultimately what is important is that the procedure was fair overall. Once the appeal decision is made the employee should be informed whether the decision to dismiss or apply another punitive measure will be upheld and if so that the process is complete and that they have no further right of appeal the decision internally.

We hope that this provides a basic guide to conducting a disciplinary process in a fair and reasonable manner. However, every situation may not be the same and it is advised that you seek professional services from institutions such as the Barbados Employers Confederation to ensure that the process is done right the first time.

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