Pre-termination hearing
A hearing is a procedure, not a ceremony, and its validity is judged after the event by what happened in it and by what happened before it. This guide sets out what the law and the case law require at each stage, what rights the employee has in the meeting itself, and what follows when the process is found defective.
Where the duty comes from
The duty to hold a hearing is not written in statute. It was created by the Labour Court as a consequence of the duty of good faith in employment relations, and over the years it has been elaborated into a defined procedure. The Ministry of Labour puts the duty this way: the employer must give the employee a proper, fair and reasonable opportunity to make their case against the intention to dismiss them, and to respond to the employer allegations, before the decision is taken.
Two points are commonly missed. First, the duty applies in the private sector, and is not confined to public service or to large businesses. Second, and more substantively, the hearing must take place before the decision to dismiss has crystallised in the employer mind. A hearing held after the decision has already been taken is not a hearing, however courteously it was conducted and however well it was recorded.
The employer is not required to give reasons for the dismissal in the notice itself. Reasons are required at an earlier stage, ahead of the hearing, so that the employee can respond to them.
What must happen before the meeting
Most defects in a hearing are created before the parties enter the room. Three cumulative requirements:
- Advance notice within a reasonable time. The employee must know that their dismissal is under consideration, and be given a genuine opportunity to prepare. A summons delivered an hour before the meeting does not satisfy this.
- Full information and reasons. Not performance problems in the abstract, but the allegations themselves. Specific events and the dates on which they occurred must be identified, not generalities.
- Inspection of documents. The employee must be allowed to inspect the documents the employer relies on, before the meeting rather than during it.
It is the specificity of the reasons that makes a defence possible. An allegation with no date, no event and no document behind it cannot be rebutted, and for that reason does not satisfy the requirement even where it is true on its merits.
The meeting and the employee rights in it
In the meeting itself the employee has defined rights:
- Accompaniment. The employee may attend accompanied by a lawyer or another person representing them, including a family member.
- Employee representation. Where the employee wishes it, a works council representative must be allowed to attend.
- Witnesses. The employee may bring their own witnesses and, where the circumstances warrant, question the employer witnesses.
On the employer side, it is advisable that a second person be present. The most substantive requirement of all is listening with an open mind: the case law asks whether the submissions were heard in order to be weighed, or in order to discharge a formality after the position had already been settled. This is the test that defeats most defective processes, and it is examined through external circumstances: when the replacement post was advertised, internal correspondence, and when others in the organisation were told.
The decision, the protocol and notice
The hearing is recorded in a protocol, and a copy is given to the employee. This is an express requirement, not a recommended practice. The protocol is also the employer principal evidence if the process is later examined by the court, so incomplete recording harms the very party that prepared it.
After the meeting a genuine period for consideration is required, and only then is the decision taken. Where the employee is dismissed, notice is given, its length following from seniority and from the basis on which the wage is paid: a salaried employee is entitled to one month after a full year of employment, and one who has not completed a year is entitled to six days for each of the first six months plus a further two and a half days for each additional month. An employee paid daily or hourly is entitled to a day for each month in the first year, to 14 days in the second year and to 21 days in the third, in both cases plus a day for each two further months of work, and to one month after three years.
The employer may dispense with the employee working during that period and end the employment immediately, provided the full wage for it is paid. The employer may not compel the employee to use accrued leave during that period. On termination the dismissal letter, Form 161 and the pension release letter are handed over.
A defective hearing and what the court awards
An employee dismissed without a hearing, or through a defective process, may bring a claim before the Labour Court. Two remedies are available, and they differ greatly in scope:
- Monetary compensation for the defective dismissal process. This is the usual remedy. It is separate from severance pay and from notice, and is fixed according to the gravity of the defect and the circumstances of the case.
- Setting the dismissal aside. The court may set the dismissal aside and require the employer to continue the employment. This is an exceptional remedy, reserved for cases where the defect goes to the root of the process or the dismissal is tainted by an improper consideration.
The level of compensation is not a formula. It follows from the depth of the defect, the employee seniority, the wage, and whether the defect was technical or deprived the employee of any ability to affect the outcome. For that reason there is little point in expecting a particular figure in advance, and any assessment of a file begins with reading the summons, the protocol and the correspondence that preceded them.
Where dismissal is restricted or prohibited
Beyond the hearing requirement, there are statutory provisions that make dismissal conditional on a permit from the Ministry of Labour, or prohibit it altogether in certain circumstances, for example during maternity leave. Further restrictions may arise from a collective agreement or from the employment agreement: a bar on dismissal during a defined period, or a duty to consult the works council before dismissing.
Before any dismissal process, it must be confirmed that no provision in statute, in the employment agreement or in a collective agreement restricts the dismissal or makes it conditional on a prior procedure. That check comes before the summons to the hearing, not after it.
The other side of termination is governed too. An employee resigning is not required to give reasons, but an employee resigning because of a material worsening of the terms of employment is as a rule required to give advance warning of the intention, so as to allow the employer a proper opportunity to put matters right. An employee who does not may find it difficult to establish the ground for the resignation, and the entitlement to severance pay may be affected.
How an employer prepares
A sound hearing process costs no more than a defective one, but it requires order. Four things separate the two:
- Contemporaneous documentation throughout the employment. Performance concerns recorded at the time withstand scrutiny; concerns assembled after the fact for the purposes of the hearing look exactly that way to the court as well.
- A written summons with reasons. The summons is the first document examined. It should set out the allegations, the dates, and the employee right to be accompanied and to inspect documents.
- Separating the convenor from the decision maker. The presence of a second person on the employer side, preferably one who was not party to the dispute, strengthens the impression that the decision had not yet been taken.
- Time to consider. A decision delivered at the close of the meeting itself suggests it was prepared in advance.
The cost of a defective process is not limited to compensation. It includes conducting the proceedings, the exposure of internal conduct in discovery, and the possibility that the employee is reinstated.
In summary
A hearing is judged not by what was said in the room but by a whole chain: what was given to the employee and when, which documents were made available to them, who sat in the meeting, how long passed before the decision, and what was recorded. Any link in that chain can turn a sound process into a defective one, and the reverse.
This is also why a hearing file is hard to assess from the outside. The question is not whether a meeting took place, but whether the decision was still open when it did, and that is learned from the documents and the timing rather than from the protocol alone. Such an assessment, and equally the building of a process that will withstand scrutiny, calls for professional legal representation by a lawyer who specialises in labour law.
If you have received a summons to a hearing and are unsure what is required of you, or you are an employer wanting to be sure the process you are building will hold, contact us and we will go through the documents and the options open to you.
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Received a summons to a hearing?
Send us the letter of summons and the documents attached to it. That is enough to say whether the process is sound, what is worth raising in the meeting, and what timeline you are working to.