S.I. No. 117/1996 - Industrial Relations Act, 1990, Code of Practice on Disciplinary Procedures (Declaration) Order, 1996.

S.I. No. 117 of 1996.

INDUSTRIAL RELATIONS ACT, 1990, CODE OF PRACTICE ON DISCIPLINARY PROCEDURES (DECLARATION) ORDER, 1996.

WHEREAS the Labour Relations Commission has prepared a draft code of practice on disciplinary procedures;

AND WHEREAS the Labour Relations Commission has complied with subsection (2) of section 42 of the Industrial Relations Act, 1990 (No. 19 of 1990), and has submitted the draft code of practice to the Minister for Enterprise and Employment;

NOW THEREFORE, I, RICHARD BRUTON, Minister for Enterprise and Employment, in exercise of the powers conferred on me by subsection (3) of that section, the Labour (Transfer of Departmental Administration and Ministerial Functions) Order, 1993 ( S.I. No. 18 of 1993 ) and the Industry and Commerce (Alteration of Name of Department and Title of Minister) Order, 1993 ( S.I. No. 19 of 1993 ), hereby order as follows:

1. This Order may be cited as the Industrial Relations Act, 1990 , Code of Practice on Disciplinary Procedures (Declaration) Order, 1996.

2. It is hereby declared that the code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act, 1990 (No. 19 of 1990).

SCHEDULE

CODE OF PRACTICE ON DISCIPLINARY PROCEDURES

Section I — Introduction

1. Section 42 of the Industrial Relations Act 1990 provides inter alia for the preparation of draft codes of practice by the Labour Relations Commission for submission to the Minister for Enterprise and Employment, and for the making by him of an order declaring that a draft code of practice received by him under section 42 and scheduled to the order shall be a code of practice for the purposes of the said Act (Appendix I).

2. The main purpose of this code of practice is to set out for the guidance of employers, employees and their representatives the general principles which should apply in the operation of disciplinary procedures. For the purposes of this code of practice, "employee representative" includes a colleague of the employee's choice and an authorised trade union but not any other person or body unconnected with the enterprise.

3. In any enterprise or organisation, it is important that procedures of this kind exist and that the purpose, function and terms of such procedures are known and clearly understood by management, employees and trade unions.

Section II — General

4. This code of practice contains general guidelines on the application of disciplinary procedures and the promotion of best practice in giving effect to such procedures.

5. The principles and procedures of this code of practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with disciplinary issues.

Section III — Importance of Procedures

6. Procedures are necessary to ensure both that discipline is maintained in the workplace and that disciplinary measures can be applied in a fair and consistent manner. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere at workplace level requires that acceptable procedures be in place and be observed.

7. Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed.

Section IV — General Principles

8. The essential elements of any procedure for dealing with disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

9. Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good industrial relations practice generally.

10. The procedures applied must comply with the general principles of natural justice and fair procedures which include:

(i) that details of the allegations or complaints be put to the employee concerned;

(ii) that the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

(iii) that the employee concerned is given the opportunity to avail of representation;

(iv) that the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

11. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

12. As a general rule, an attempt should be made to resolve a disciplinary issue between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.

Section V — Disciplinary Procedures

13. In the interest of good industrial relations, disciplinary procedures should be in writing and presented in a format and language which is easily understood. Copies of the procedures should be given to all employees and should be included in any induction programme for new employees. The consequences of a departure from rules and employment requirements should be clearly set out, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.

14. Disciplinary action may include;—

( a ) an oral warning

( b ) a written warning

( c ) a final written warning

( d ) suspension without pay

( e ) transfer to another task, or section of the enterprise

( f ) demotion

( g ) some other appropriate disciplinary action short of dismissal

( h ) dismissal

Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage.

An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.

15. Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied.

16. Warnings should be removed from an employee's record after a specified period and the employee advised accordingly.

17. The operation of a good disciplinary procedure requires the maintenance of adequate records. It also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to the terms of the procedure.

APPENDIX 1

Codes of Practice:

Section 42 of the Industrial Relations Act, 1990 states:

(1) The Commission shall prepare draft codes of practice concerning industrial relations for submission to the Minister, either on its own initiative or at the request of the Minister.

(2) Before submitting a draft code of practice to the Minister, the Commission shall seek and consider the views of organisations representative of employers and organisations representative of workers, and such other bodies as the Commission considers appropriate.

(3) Where the Minister receives a draft code of practice from the Commission he may by order declare that the code, scheduled to the order, shall be a code of practice for the purposes of this Act.

(4) In any proceedings before a court, the Labour Court, the Commission, the Employment Appeals Tribunal, a rights commissioner or an equality officer, a code of practice shall be admissible in evidence and any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

(5) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings,

(6) The Minister may at the request of or after consultation with the Commission by order revoke or amend a code of practice.

(7) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either House within the next twenty-one days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done hereunder.

GIVEN under my Official Seal, this 6th day of May, 1996.

RICHARD BRUTON,

Minister for Enterprise and Employment

EXPLANATORY NOTE.

The effect of this Order is to declare that the draft code of practice set out in the Schedule to this Order is a code of practice for the purposes of the Industrial Relations Act, 1990 .