Even with the mandating of the COVID vaccination for many organisations, employers still need to follow a process before deciding to terminate employment. An employer’s good faith obligations remain.
The Employment Relations Authority (ERA), the body that determines personal grievances, has a backlog of 659 cases on their books, with a further 280 yet to be assigned. The result is a wait of over a year for a case to be determined.
A shortage of staff and COVID-19 are two of the factors that have led to the backlog. Although new Authority Members are being appointed, the backlog is likely to get worse before it gets better, and it will take many months to clear.
This creates many practical implications for employers. The likely least complicated is a personal grievance claim for unjustified dismissal and/or disadvantage for an employee who is not looking to be reinstated. Clearly the length of time this is over your head without resolution can create additional anxiety and stress. This applies to the witnesses as well as business owners. It also means events that led to the grievance issues are far less recent in people’s memory and key factors are prone to being forgotten (or inaccurately remembered). Key witnesses change jobs and may no longer be willing to appear at the Authority hearing for you.
Our advice is to ensure all witnesses do their written statements as soon as possible. Do not wait until they are required by the Authority. Write down everything, even the factors that you might not think are important. Keep all the documentation, trawl though your emails and texts and retain copies of everything that may be relevant.
A more complicated and potentially more destructive issue arises where an employee is seeking reinstatement following a dismissal. If a full hearing on the grievance is some time away it is usual practice for the employee to seek an urgent hearing just on the matter of interim reinstatement. That is where the Authority decides the employee is to have their job back while the parties wait for the full hearing and decision on the personal grievance. You can imagine the implications and impact of this on the work environment. Representatives of employees will often use the possibility of seeking reinstatement as a negotiating tool at mediation to encourage the employer to settle the matter at a higher cost.
These significant delays are detrimental to all parties and it is a further incentive to reach a settlement at mediation if possible. It does leave the door open for settling a grievance even after mediation, so everyone can move on with their lives.