Preston Russell Law - Legal Services for Southern People

A Fair and Reasonable Process

Saturday, November 13, 2010 by Brian Richardson, HR Adviser category Work to Rule

For a long time, it seems for ever, the bane of an employer’s life seems to have been that they are bedeviled by process. What is the correct process to be followed in a redundancy situation? What is the correct process to be followed in a disciplinary situation? There is nothing in any legislation that tells you what you have to do.

Mary-Jane harps on incessantly about it, and she is right to do so.

However, there maybe light at the end of the tunnel.

 

It would seem that with a proposed change to the Employment Relations Act 2000, there maybe some written guidance for employers and employees within the Act, rather than having to rely on previous Court decisions which maybe difficult to find and difficult to apply appropriately.
There is a current proposal to set out a minimum set of requirements for a fair and reasonable process; these are:
(a)         The employer’s processes will not be subject to pedantic scrutiny;
(b)         An employer’s resources will be taken into account;
(c)         The Employment Relations Authority and the Employment Court will consider whether a process has been fair and reasonable taking account of the following:
(i)                whether the employer has properly investigated the allegations
(ii)               whether the employer’s concerns have been properly communicated to the employee;
(iii)              whether the employee has had a reasonable opportunity to respond to any concerns the employer raised;
(iv)             whether the employer has considered (with an open mind) the employee’s explanation(s) before making a decision;
(v)               whether as a result of any deficiencies in the process undertaken by the employer there was a probability that the employee was unjustly treated.
It seems to me that the government is trying to move from a judgment system mainly based on process to a judgment system based more upon the merits of a case. This is to be applauded especially when taken in concert with the previously discussed change to section 103 A where the employer will be judged upon what a fair and reasonable employer could have done rather that the current, rather restrictive situation, where they are judged on what a fair and reasonable employer would have done.
In all probability these changes will mean that an employers actions will be judged more against the particular facts of the case, rather than the application of a generic procedural approach.
With respect to redundancy situations the proposed change will not take away the requirement that consultation is mandatory in all redundancy situations.
We will keep you informed of when and how these changes will be implemented.