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Unfair DismissalFebruary 11, 2016
Former Cronulla Sharks star, Todd Carney, is in mediation with the club as he sues them for almost $3 million for unfair dismissal.
Carney was fired from the Cronulla NRL club in June 2014 after an image circulated of him online, urinating into his own mouth. Carney is arguing the Sharks failed to follow the correct process for dealing with a disciplinary issue, as outlined in the Rugby League Players Association’s collective bargaining agreement.
Carney’s case shows how important it is to follow the correct procedure when it comes to taking disciplinary action against any employee. Disciplinary action is the process of communicating with your employee in order to improve any behaviour or performance deemed unreasonable in the workplace.
If an employee engages in serious misconduct, an employer may choose to proceed immediately with disciplinary action. Even when there is a valid reason to take disciplinary action against an employee, employers are required to follow a fair process prior to taking action.
Conduct an investigation
The employer should conduct interviews with fellow staff members who may have been involved in, or witness to the misconduct and record all responses. All parties (witnesses, the employee being investigated and the complainant) should be informed of how long the investigation is expected to take.
Employers can consider the suspending the employee whilst the investigation is underway. Suspension may be required if there is a reasonable threat to colleagues or clients, property or the business. However, there is no automatic right for an employer to suspend an employee – it must be specified in the company’s contracts, Modern Award or collective agreement.
Employers are not entitled to withhold wages or salaries from an employee, especially if the wages and salaries are for work already completed.
Issue the employee a warning
A warning may be delivered in writing or verbally, and should be delivered from the employer to alert them of a certain action or actions which were inappropriate. Matters may result in a warning include repeated poor performance, refusal to carry out reasonable directions, arriving to work late, abusive behaviour towards clients or colleagues and actions such as that of Todd Carney which can impact a company brand.
Any employer should be careful to ensure the employee is provided with adequate warning, particularly if there is the chance their conduct could result in a dismissal.
The written warning should:
– clearly describe the performance problem or problems in specific detail and, if applicable, attach documents which support your conclusions
– outline previous steps taken to familiarise the employee with the issue (training undertaken, performance appraisals, previous disciplinary actions taken)
– outline the impact and consequences of the problem
– reiterate your expectations of acceptable behaviour, as outlined in the company policies and procedures
Conduct a disciplinary meeting
A disciplinary meeting is a session between a supervisor/ employer and an employee to focus on a specific workplace incident or the result of a performance appraisal. Disciplinary meetings should be undertaken in order to improve an employee’s attitude or performance. The following process should be followed when conducting a disciplinary meeting:
– the employee must be advised of their entitlement to bring a support person to the meeting
– clearly outline the work related behaviour which is the topic of the meeting
– state what the outcome of the meeting is and the actions required
– ask the employee to provide reasons for their unacceptable performance or actions
– give the employee a chance to respond to all allegations made against them
– notes must be recorded in the meeting. Where appropriate the employee should also be provided with a copy of the disciplinary meeting minutes.
Todd Carney believes Cronulla Sharks did not follow the correct procedures in relation to his misconduct. Whilst sometime claims are unavoidable, if you follow the correct disciplinary procedure you can rest assured you will be ok, no matter the circumstances.
As Australia’s leading specialist in the field, we can make sure you are aware of your obligations as an employer. If you have any questions regarding disciplinary processes call Employsure today on 1300 651 415. We can advise on all matters of employee misconduct, performance management and the best way to handle difficult employees in your workplace.