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.
BrightHR allows you to store employee profiles and key documents such as polices and procedures and handbooks securely in the cloud and you determine what employees can access. You can upload updated policies and handbooks, set reminders and notifications of key dates, and get read receipts once your employees have accessed the latest version.
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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Frequently Asked Questions
What Is The Purpose Of A Disciplinary Policy?
The purpose of a disciplinary policy is to set employee expectations as to standards of behaviour in the workplace, and to outline the process and the possible consequences if these standards are not met.
What Is A Typical Disciplinary Procedure?
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.
How Many Stages Are In A Disciplinary Procedure?
There are usually at least five stages in a fair disciplinary process:
- Investigate and establish the facts and if disciplinary action is appropriate.
- Give the employee a written invitation to a meeting, outlining the allegations and possible ramifications, and advising them they can bring a support person.
- Provide the employee with a reasonable opportunity to prepare for the meeting (at least 24 hours).
- At the meeting read the allegations and allow the employee to respond (ask questions for further clarification if necessary), set expectations as to when you will deliver an outcome, and close the meeting.
- Consider the employee’s responses, and whether the allegations are substantiated in the light of any mitigating circumstances.
- Decide on an appropriate outcome. Invite the employee to a further meeting to deliver the outcome and follow up in writing.
What Is The Correct Procedure For A Disciplinary Meeting?
There are no specific requirements or process for a disciplinary meeting other than that it is conducted in a fair and reasonable manner. A disciplinary meeting may include the following:
- The meeting should be opened by welcoming those present and identifying all persons present by name and role, including a third party note-taker to document the meeting
- The chair of the meeting should confirm that they will have sole decision-making responsibilities and that no decision will be made until after the conclusion of the meeting and any subsequent investigation
- The chair should outline the process to be adopted in the meeting
- The chair should then read out the allegations of misconduct one at a time with the employee being invited to respond to each one
- 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
- Once all allegations have been explored, and the employee has been provided an opportunity to respond to each, the employee should be asked if there is 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) should be explained to the employee, with the employee advised they will be notified of the outcome of this process in a timely manner
- The meeting should then be ended.
Can I Go Straight To A Disciplinary Meeting Without An Investigation?
Yes – There is no need to conduct an investigation prior to the commencement of a disciplinary process. However, failing to investigate may detrimentally impact upon the investigation and relationship with the impacted employee(s).
What Is The Last Stage Of Disciplinary Proceedings?
The outcome is the last stage of the process. Where an allegation of misconduct has not been substantiated, generally no action will be taken. However, where an employer believes on reasonable grounds that misconduct has occurred after following the disciplinary process, this process may result in disciplinary action against the employee, including a written warning, a final written warning, or possibly even termination of employment.
How Many Warnings Do I Have To Give Before I Can Dismiss An Employee Through The Disciplinary Process?
It will depend on the circumstances. After conducting a fair process, you may be able to dismiss an employee on the basis of an escalation of warnings ie. for repeated warnings for the same or similar behaviour over a certain timeframe. In the case of serious misconduct, dismissal after just one incident (again after conducting a fair process) may be justified.
Who Should Attend A Disciplinary Meeting?
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.
How Long Do Disciplinary Warnings Stay On File?
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.
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 kept for seven years. it is best practice to keep other records as well to provide a full employment history.
With BrightHR, you can generate and print reports, and then store wage and time records and related documents securely in the cloud to comply with your record-keeping requirements.
