Disciplinary Process Guide

Introduction

Sometimes, it may be necessary to address concerns with an employee through a formal disciplinary process, such as in the case of misconduct, which is improper behaviour in the workplace.

General misconduct is behaviour that is generally unacceptable, inconsistent with employee obligations or duties, or a breach of company policy or procedure. Examples include unauthorised absences, lateness, and bad language.

Serious misconduct is defined in the Fair Work Regulations 2009 as wilful and deliberate behaviour that is inconsistent with the continuation of the employment contract or causes serious and imminent risk to the reputation, viability, or profitability of the business, or the health and safety of a person. It includes theft, fraud, assault, intoxication at work, or failure to follow a lawful and reasonable instruction that is in keeping with the employee's contract of employment.

Where there is cause to take disciplinary action against an employee, there is generally a requirement to conduct a procedurally fair process.

Disciplinary Procedure

There are usually at least five stages in a fair disciplinary process:

Step 1: Investigate

Prior to commencing a disciplinary process, it is useful to conduct an investigation to establish the facts surrounding a particular matter. This can assist an employer in determining whether the commencement of a disciplinary process is necessary or appropriate in the circumstances.

• Use an investigation template to record the interview.
• Decide on an appropriate outcome (i.e., steps 1, 2, or 4).
• Suspension of the employee on full pay may be appropriate if the alleged conduct is serious or in circumstances whereby the employee might hinder the investigation.

Step 2: Invite Employee to Disciplinary Meeting

If you proceed to go down a disciplinary path, you may wish to convene a formal meeting.

• It is recommended that the employer write to the employee outlining the allegations, the possible ramifications if the misconduct is proven, and the date and time for the disciplinary meeting, and that they may bring someone with them for support.
• The employee may be provided with a reasonable opportunity to prepare for the meeting.
• The minimum standard should be at least 24-48 hours’ notice.

Step 3: Conduct Disciplinary Meeting

The meeting should be opened by welcoming those present and identifying all persons present by name and role.

• The chair of the meeting will generally confirm that no decision will be made until after the conclusion of the meeting and any subsequent investigation is completed.
• The chair then usually outlines the meeting process and reads out the allegations of misconduct one at a time and invites the employee to respond to each one in turn.
• It is recommended you appoint a third person other than the chairman or the employee to take notes and document everything.
• The chair and any other management representatives are entitled throughout to ask any questions considered necessary to confirm the employee’s understanding of the allegations or to test the response of the employee.
• Once all allegations have been explored, and the employee has been provided with an opportunity to respond to each allegation, ask the employee if there are any other matters that they wish to raise and what they would consider a reasonable outcome to the proceedings.
• The next steps (i.e., further investigation or deliberation and response) may be explained to the employee, and they will be advised that they will be notified of the outcome of this process in a timely manner before closing the meeting.

Step 4: Respond

• The employer should take time to consider or further investigate the employee’s responses before deciding on the balance of probabilities if the allegations are substantiated and considering what outcome is appropriate in the circumstances.
• The employee may be invited to a further meeting so the outcome can be delivered.

Step 5: Outcome

Where an employer believes on reasonable grounds that misconduct has occurred after following the above process, this process may result in disciplinary action against the employee.

• A warning may be appropriate in the circumstances, or other outcomes, such as a letter of concern, reprimand, no action, final written warning, verbal warning, or even termination may be justified.
• The employee should be verbally advised of the outcome of the disciplinary process, with a letter of confirmation provided.
• Where appropriate, the employee should also be provided with a copy of the minutes of the disciplinary meeting with the outcome letter.
• If dismissal is the outcome of the disciplinary process, a record of how the employment ended should be kept on file as part of the employee’s employment records.
• Time and wages records of (ex) employees need to be kept for seven years.
• It is best practice to keep other records as well to provide a full employment history.

Additional Considerations for Termination

• A final disciplinary meeting should be conducted by inviting the employee to the meeting. The employee should be informed of their termination during the meeting.
• The employee should be offered to participate in an exit interview after the termination meeting.
• Upon completion of meetings, the employee should be provided with a formal termination letter and other relevant documentation. A copy of all documentation should be placed in the employee’s file. Advise payroll of confirmed termination.
• Follow these general principles for a fair process:
  • Determine whether there is a valid reason to start disciplinary action.
  • Inform the employee of the allegation.
  • Investigate the allegations.
  • Conduct a formal meeting.
  • Allow the employee to respond to all allegations.
  • Make further investigations if required.
  • Arrange a second formal meeting.
  • Decide the action to be taken.
  • Make a preliminary decision.
  • Make a final decision.
• Factors to consider before terminating employment:
  • The reason for dismissal.
  • The person’s employment history and record.
  • The person’s length of employment.
  • Whether the reason for dismissal is based on fact and is supported by adequate written warnings (if required).
  • Whether the staff member has had an adequate opportunity to make a defence or provide an explanation prior to dismissal (and when issued with warnings) and that defence does not alter the circumstances or the reasons for the termination.
  • Whether the staff member requires the assistance of another person in defending himself or herself against allegations, particularly in cases where the staff member concerned may need an interpreter.
  • Any reasonable and acceptable alternatives to dismissal e.g., transfer to other duties or demotion by consent.
  • Whether consultation with Human Resources has occurred.
  • Whether the person was offered a support person to be present during the meeting.
• It will depend on the circumstances whether you can dismiss an employee on the basis of an escalation of warnings, i.e., for repeated warnings for the same or similar behaviour over a certain time frame. In the case of serious misconduct, dismissal after just one incident (again after conducting a fair process) may be justified.
• Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust, or unreasonable manner.
  • Employees have to apply to the Commission within 21 days of the dismissal taking effect. The 21-day period starts the day after the dismissal.
  • Employees have to be employed for at least 6 months before they can apply for unfair dismissal. Employees working for a small business have to be employed for at least 12 months before they can apply.

Optional Step: Performance Counselling Meeting

• Invite employee to performance counselling meeting.
• Conduct counselling meeting to address performance issues.
  • A discussion template should be used as a guide for conducting and recording the discussion.
  • A file note should be written up after the meeting, a copy given to the employee and one placed on the employee’s file for monitoring.
  • A performance improvement plan should be provided to the employee after the meeting.

Verbal Warning

• If conduct or performance is unsatisfactory, issue a formal verbal warning, which will be recorded and will remain on file for a stated1 period.
  • A discussion template should be used as a guide for conducting and recording the discussion.
  • Verbal warning should be written up after the meeting, a copy given to the employee, and one placed on the employee’s file for monitoring.

First Written Warning

• If the performance of the individual has not improved before the specified review date, the employee should be notified of a second meeting.
  • A discussion template should be used as a guide to structure the meeting and to provide a documented record of the formal warning given, and the outcomes and agreements.
  • A first formal warning and a performance improvement plan should be provided to the employee after the meeting.

Final Written Warning

• If the individual’s performance has not improved by the final review date, a second warning is to be given.
  • The employee should be notified of this meeting.
  • This meeting should outline the final opportunity for the employee’s performance to improve before their employment is terminated.
  • A discussion template is utilised to document the session.
  • A second warning and a performance improvement plan should be provided to the employee post the meeting and a copy placed in the employee’s file.

Key Considerations

• The disciplinary process should be conducted in a fair and reasonable manner.
• There are no specific requirements other than that it is fair and reasonable, and there is reasonable justification for the outcome in the circumstances.
• Ideally, it will consist of a step-by-step process, conducted in a fair and reasonable manner, aimed at establishing whether allegations of misconduct against the employee can be substantiated by taking into account their responses and any mitigating factors, and if so, determining an appropriate outcome in the circumstances.
• There are no specific requirements or process for a disciplinary meeting other than that it is conducted in a fair and reasonable manner.
• It may be appropriate for a number of people to attend the disciplinary meeting, including the employee, their support person or representative, the employee’s direct manager, the human resources manager, and a note-taker to document everything.
• Generally, it is considered unreasonable to take warnings issued more than 12 months prior into account when considering escalating warnings for the same or similar misconduct.
• While dealing with a disciplinary process, there is a possibility of an unfair dismissal claim even with guidance. A sloppy termination can lead to legal liability for your organisation. Discipline and termination procedures are a time-sensitive procedure that needs to be well-planned.
• Just saying “you are fired” is not the end of the story when terminating an employee. In reality, the termination process includes much more complicated procedures and steps that you need to follow.
• A detailed flowchart detailing the step-by-step process of discipline and termination makes the task much easier for the employer.
• A four-step procedure is outlined, however, the appropriate disciplinary outcome should only be decided once an investigation is completed (e.g., verbal warning, first and final warning, termination). It may be appropriate to go straight to step 2 or 4.

Disciplinary Meeting Invite Template (Performance or Misconduct)