legal insight - wrongful termination

Understanding the policies and procedures surrounding employee termination

Where an employer has a potential employee complaint, as Solicitors, one of the first things we will want to see is a copy of the employee’s contract of employment and the employee handbook. We will review the Contract and handbook to see if they are valid and if they comply with all of the relevant legislation.

Employment contracts must contain and address certain core terms of employment and should be put in place within five days of the employee commencing employment.

The employee handbook should set out in detail the specific policies and procedures that the company will follow in various scenarios, such as annual leave policies, employee grievances policies, and procedures. The absence of policies and procedures, or the employer’s failure to follow their own policies is one of the primary areas where employers will slip up and fall foul.

In our experience, the majority of decisions made against employers in the Workplace Relations Commissions are not as a result of the alleged offence, but on how the employer handled the complaint. All too often we see that the employer has failed to follow the policies and procedures set out in their own handbook. All policies and procedures should comply with and abide by the principles of fair procedures and natural justice, which means that the process by which a decision is reached was transparent, fair, and just in the circumstances.
Most commonly, we will see this issue arise in the context of an employer bringing disciplinary proceedings against an employee.

An employee is entitled to;

  1. Notice of any meeting;
  2. Details of the alleged complaint against them, any supporting evidence the arbitrator will be relying on;
  3. An opportunity to respond to the complaint;
  4. A copy of the decision and details of the logic of how and why the arbitrator reached that decision;
  5. An opportunity to appeal that decision;

Employee handbooks should be updated as required, e.g. in light of changing circumstances such as the Covid-19 pandemic. Companies should update their handbooks to include policies on the various aspects of how they will deal with the pandemic and the various issues it presents, such as what happens if an employee tests positive for Covid-19, or the requirement for employees to wear masks while in the workplace. Employees must be informed of any amendments, updates, or alterations to the company handbook and ideally, employees should be consulted and their views considered before making any amendment to the employee handbook.

We would encourage all employers to review their contracts of employment and employee handbooks on an annual basis. Several HR organizations offer this facility, but it should be done in conjunction with your solicitor who will have specific knowledge of your business and its potential areas of exposure.

Your policies and procedures do not have to be long-winded, complicated documents full of fancy legal terms. They should be written in plain English, straightforward, and concise. Make sure that you have written policies and procedures in place and that when using them, they adhere to the principles of fair procedures and natural justice.

For more information on this topic please, contact us.