Sometimes an employer may need to raise and address concerns with an employee through a formal disciplinary process, for example in the case of misconduct, which is improper behaviour in the workplace.
General misconduct is behaviour that is considered 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 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.
The Importance of a Disciplinary Policy
It is recommended that businesses implement policies to avoid confusion or misunderstanding in respect of disciplinary processes, and to set employee expectations with regards to standards of behaviour.
It is important to make these policies available to all employees (generally in an employee handbook) and be consistent in applying and enforcing them.
Conducting a Fair Disciplinary Process
Where there is cause to take disciplinary action against an employee, there is generally a requirement to conduct a procedurally fair process. This may include:
- An investigation to determine whether disciplinary action is appropriate; and if so
- Giving the employee an invitation to a meeting which outlines the allegations and possible consequences if the allegations are substantiated;
- Holding a meeting with the employee to discuss the issues allegedly involved (to which the employee may bring a support person);
- Providing the employee with the opportunity to respond to the allegations;
- Considering the employee’s responses and any extenuating circumstances before deciding whether the allegations are substantiated and an appropriate outcome.
Step 1: Investigate
Prior to commencing a disciplinary process, it is useful to conduct an investigation in an effort to establish the facts surrounding a particular matter. This can assist an employer to determine whether the commencement of a disciplinary process is necessary or appropriate in the circumstances.
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 them to a disciplinary meeting
If you proceed to go down a disciplinary path, you may wish to convene a formal meeting. Although this is not required, a disciplinary meeting is an effective way to extract information that will assist in reaching a conclusion. It is usually recommended 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: Present the facts
The meeting is usually 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.
Step 4: Listen to employee responses
The meeting is the employee’s opportunity to present extenuating circumstances (if any) and the employer should consider the employee’s responses with an open mind.
The chair and any other management representatives are entitled throughout to ask any questions considered necessary to confirm the employees understanding of the allegations or to test the response of the employee.
Step 5: Respond
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 which they wish to raise and what they would consider a reasonable outcome to the proceedings.
The next steps (ie further investigation or deliberation and response) may be explained to the employee, and advise they will be notified of the outcome of this process in a timely manner before closing the meeting.
Step 6: Follow-up meeting to deliver outcome
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 7: 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.
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