Thu | Feb 25, 2021

Lauren Marsh | Employers losing millions for not conducting disciplinary hearings

Published:Thursday | January 21, 2021 | 12:13 AM
Lauren Marsh
Lauren Marsh
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Many employers do not recognise the importance of conducting a disciplinary hearing before terminating an employee. A disciplinary hearing is a formal meeting between management and employee/employee representative on allegations of a breach of the company’s disciplinary policy that may or may not result in punitive action. The underlying principle guiding disciplinary hearings is embodied in the Latin term audi alteram partem, which means ‘hear the other side’. My examination of 176 Industrial Disputes Tribunal (IDT) cases revealed that in at least 35 per cent of the awards made, the failure to conduct a disciplinary hearing was among the main contributory factors leading to an award to the employee. The need for employers to conduct a disciplinary hearing is enshrined in the Jamaica Labour Relations Code and the Disciplinary Policy for Public Bodies (specific to the public sector).

The Ministry of Labour and Social Security encourages employers and worker representatives to review employee manuals to ensure compliance with the requirements of due process. Due process is outlined in the Labour Relations Code (1976) and includes the right of the worker to confront his accuser and respond to charges before any judgement is made. Senator Kavan Gayle, president of the Bustamante Industrial Trade Union, stated that “it is always important to conduct a robust disciplinary hearing to give the employer the opportunity to probe and investigate the employee’s conduct”. He further explained that a disciplinary hearing is necessary because it is “fair and reasonable for the employer to allow the employee to give their account of the story and explain their actions”.

Many employers have failed to uphold this principle, thereby reducing their chances of success whenever the employee seeks the intervention of the Ministry of Labour and Social Security. Gillian Corrodus, divisional director of industrial relations and allied services at the Ministry of Labour and Social Security, explained that the test of a justifiable dismissal includes the fact that the reason for dismissal can stand scrutiny, the manner in which the dismissal is carried out follows due process and the payments due are correct. She also mentioned that several employers have relied on an erroneous notion of ‘three strikes and you’re out’ with complete disregard of the requirements for the holding of a disciplinary hearing.

Progressive procedures

The employer should avoid encroaching on the rights of the employee by enforcing progressive disciplinary procedures to instruct the employee, outline expected performance or behavioural standards and take punitive action with increasing levels of severity if the infraction persist. Where serious offences are believed to be committed by employees, employers should be mindful that the employee has a right to respond to allegations made by the employer.

Part VI (22) of the Labour Relations Code of 1976 clearly articulates that disciplinary procedures should:

• Give the worker the opportunity to be heard and the right to state his case.

• Provide for the right of appeal wherever practicable to a level of management not previously involved.

• Be simple and rapid in operation.

Every effort to preserve ‘natural justice’ by acknowledging that the employee has a right to representation. Allegations made against an employee must be thoroughly investigated and evidence based. If the company does not have the competencies internally to effectively investigate the alleged breach, support may be sought externally from experts.

The investigation should be conducted to establish facts surrounding the incident and not be treated a witch-hunt to incriminate the employee. The IDT in the matter of NSWMA and Reynard Cross made it clear that a failure to investigate the complaint and communicate the findings of the investigation to the employee can result in the entire disciplinary process being held to be unfair. Depending on the nature of the allegation the employee may be given ‘time off with pay’ or administration leave while the investigation is conducted. Public sector workers may be given no pay for the period or a percentage of their salary during the investigation.

Common errors

During my time planning or chairing disciplinary hearings, I have identified several errors that are often made by management from private and public sector companies. The blunders often made by management are as follows:

• Absence of a formally written disciplinary policy outlining the alleged breach.

• Not compensating the employee if given time off for the investigation to occur (conditions vary for private and public sector).

• Failure to inform the employee that he or she has the right to take a representative of choice to the disciplinary hearing.

• Subtracting days from the employee’s vacation while the investigation takes place and employee sent home.

• Withholding evidence from the employee and his representative.

• Failing to interview the accused employee.

• Biased selection of panel members for the disciplinary hearing.

Management should also ensure that roles do not overlap during the investigations and the enforcement of discipline. In the case of The Bank of Jamaica and the Bustamante Industrial Trade Union, the IDT held that though there were cogent reasons for the dismissal of the employee, the disciplinary process was unfair. Among the reasons for the decision was that the person who signed the letter charging the employee with infractions was also the person who conducted an ‘investigation’ in the allegations, determined whether the employee should in fact be charged and also was a member of the disciplinary panel who determined the charges. Similarly, in the case of Jamaica Business Development Corporation and Clareen Gayle – the IDT held that it was a breach of ‘natural justice’ for the person investigating the allegations and formulating the charges to also be a part of the disciplinary panel.

For companies that do not have an in-depth understanding of how to conduct a disciplinary hearing, it is imperative that they consult with the Ministry of Labour and Social Security or an industrial relations consultant that is knowledgeable in planning and conducting disciplinary hearing. It is also advisable that companies include the details of conducting a disciplinary hearing in their human resource manuals to prevent breaches in the planning and execution of disciplinary hearings.

Lauren Marsh, JP, is a research Fellow at the Hugh Shearer Labour Studies Institute, UWIOC. He is also an industrial relations consultant and a PhD candidate at UWI, Mona. For more information send an email to: lauren.marsh@81yahoo.com