Mediation, especially in the workplace, if carried out by professional and accredited mediators can be a “win-win” for all parties, employers and employees, with hopefully agreeable resolutions in a shorter timeframe, in a safe environment, and less costly (compared to investigations, disciplinary procedures and sanctions, possible WRC cases and representation, financial awards and potential appeals to the Labour Court)
Mediation, if provided as an option, in the terms and conditions of employment, can provide a viable option to resolving disputes in a timely manner, with potentially minimal interruption to the organisation and at a fraction of the cost of industrial relations mechanisms.
Qualified accredited Mediator are approved through the Mediation Institute of Ireland and are certified and approved.
Mediators rate can vary and are generally set on a “daily” rate, depending on the number of days required and follow up work / consultations. In addition, additional costs may apply (for the employer) in the provision of a neutral off-site venue, and or associated mediated settlements if applicable.
As mentioned earlier, mediations costs are a fraction of investigation and WRC representational cases and potential awards and appeals.
An employer should, in the first instance, examine the policies and procedures currently in place regarding allegations / complaints or breaches, and provide the complainant (person making the complaint) with a copy of these policies and procedures (if they have not been provided already) and discuss the implications or next steps with them, so as they are fully informed.
The complainant needs to be made aware of the implications of making an allegation or complaint (informal or formal), and what steps and options are available to them to seek to remedy or resolve the issues, as well as the implications of formal or serious complaints. In addition, breaches, may in itself, due to the potentially serious nature, invoke an investigation regardless of the complainant’s wishes, once brought to the attention of the employer.
Yes, the respondent (party being accused / complained about), has a right, under natural justice, to be advised there is a complaint about them, be given copy of the complaint, and have a right of reply.
An employee, after making an informed decision, may wish to retract a complaint or make an informal complaint (and therefore follow the policies and procedures of informal complaints), or depending on the policies and procedures, may wish to seek mediation, if this option is available.
If mediation is sought, the other party (respondent) would obviously have to be informed of the allegation and invited (voluntarily) to partake in mediation, which can only proceed if they both are willing and agreeable to do so. An employer depending on the severity of the complaint / allegation or breach, and in line with existing policies and procedures, may have to invoke an investigation, to determine all the facts, regardless if the complainant wishes to retract the complaint.
Obviously, if an investigation takes place and it is found the complaint or allegation made by the complainant is found to be vexatious in nature, disciplinary action may be taken against the complainant.
Therefore, a complainant needs to be fully aware and be fully informed of all implications, in advance of making any complaints / allegations or breach, and be advised what protections are in place for employees subject to making serious allegations or complaints against the employer (Protected Disclosures / Whistleblowers legislation)
Managing and setting out the clear parameters and plan of the investigation from the outset is key. Being clear on the accusation or actions to be investigated, setting clear Terms of Reference and timeframes, setting down how the investigation will take place and identifying what parties need to be interviewed, how they will be interviewed and how the process will work provides a stable and clear foundation.
In addition, ensuring compliance with best practice, professional ethos in managing the process, ensuring transparency of the process, as well as providing assurance to all parties best practice is being followed should help stabilise emotions and the workplace environment.
Obviously, in the interest of all parties, an investigation should take place as quickly as possible subject to the availability of all parties.
Gaining the expertise of an employment practitioner ensures transparency, independence and impartiality throughout the process.
An investigator will provide a detailed copy of the report to the employer summarising all the facts. All relevant parties will receive a copy or summarised copy of the investigation report. Obviously as part of the process, each party should receive a copy of their own transcripts / minutes of their investigation meeting, practice would recommend a signed approved copy by the parties should be on record. In addition, for the purposes of transparency, visibility of certain sections of minutes, where other parties are named, or allegations made-may also need to be shared to ensure completion of a thorough investigation.
An employer will then have to decide if a disciplinary interview needs to take place, and if disciplinary sanctions need to be imposed.
The cost of investigations can vary depending on a number of factors – time, number of persons to be interviewed, location and the depth and breadth of allegations. Costs and timeframes should be set out in advance by the experienced employment expert before works commence to ensure transparency and openness.
Many WRC cases against employers are lost or challenged by companies not following their own procedures. In addition, investigations, disciplinaries and appeals being carried out by the same parties in companies is in breach of natural justice.
Therefore, being pre-emptive, building robust and clear policies and procedures incorporating best practice and reviewing them regularly, with the guidance of an experienced employment expert can help prevent misunderstandings, provide clarity to employers and employees and reduce the risks both financially and operationally to the organisation.
Although the Codes of Practice on Grievance and Disciplinary Procedures (S.I. No. 146/2000 - Industrial Relations Act, 1990 (Declaration) Order, 2000 clearly sets out best practice, as a guide to carrying out grievance and disciplinary procedures, internal company procedures and policies are the primary driver as agreed between employers and employees as part of the terms and conditions of employment.
Primarily the role of the WRC is not to conduct the grievance and disciplinary again, their role is to ensure proper procedures were followed especially in line with best practice guidelines.
All employees should be given a fair right of transparency of the alleged breaches and documents / evidence, copies of investigation reports (in advance) and a right of reply and representation.
Appeals hearing, once clear in the procedures-and made within the requisite timeframes, should be assessed independently by an appeals panel or person not previously involved in any disciplinary process previously in relation to the matter in question.
For employers, especially SME’s, employment law can be a minefield! What is the law? What should I do? How should I manage and implement change if needed? How can I manage expectations? How can I deal with disputes simply, easily and without unrest?
The foundations for guidance on all employment relationships disputes should be clearly set down in the contract of employment. If not already written down, then also factors of custom and practice have also to be considered.
By reaching out early to an independent employment expert, simple guidance can be provided to ease concerns, reduce potential conflict, and seek to maintain positive working relationships and productivity. There are always solutions to all workplace relations situations.
In extreme cases, disputes may escalate or be beyond local resolution and employers need to be prepared for potential WRC investigation and hearings. An experienced employment expert can guide you along the journey of potential WRC complaints process, how it works, what needs to be done, and of course, independent assessment of all the facts.
As always, potential litigation by employees must be considered case-by-case, subject to the assessment of facts, the impact on the image of the company, and the potential resources and time required to carry out a potential case to completion, along with associated costs and potential awards.
Independent employment expert support is key to providing employers with a balanced view of all the facts in a clear and understandable manner to make informed decisions.
