Disciplinary process

All disciplinary action for misconduct must be carried out fairly by the employer, or the employee may have grounds to raise a personal grievance.

What is disciplinary process?

Disciplinary action should be seen as a corrective measure which is aimed at preventing further misconduct. Following a proper disciplinary process will help an employer resolve an issue before it becomes bigger or impacts more widely on the workplace.

The most common types of disciplinary action are warnings and, in serious cases, dismissal. Disciplinary action can also include:

• counselling
• suspension from work
• removing certain privileges
• a requirement to attend courses
• reassignment to another role or workplace, or
• in rare instances, demotion.

The employer must set out in writing the disciplinary process, what actions may be taken and when, and what type of behaviours are considered misconduct and serious misconduct. This could be included in the employment agreement

Employment agreements contain the terms and conditions of employment. Every employee must have a written employment agreement outlining the terms and conditions of employment. ‘Employment agreement’ has a broader meaning that includes all other documents and other agreements forming part of the contractual agreement between the employee and employer.

or workplace policies and procedures so that everyone knows where they stand before any issues come up.

Disciplinary action must always be fair and reasonable. The employer must:

• have a good reason for undertaking the disciplinary action, and
• follow a fair process before making the decision and then acting on it.

If the employer does not have a good reason for the disciplinary action, or did not follow a fair process, the employee may have grounds for raising a personal grievance.

Following a fair process

If an employer wants to discipline an employee for misconduct, they must have good reason for doing so. Disciplinary action might include a warning, suspension or dismissal.

Usually, procedures for disciplinary action will be written in the employment agreement or workplace policies. These must be followed. Where there is no agreed procedure, employers should use a careful, thorough and fair process.

NOTE

If you think an employee is not doing their job or is performing poorly in relation to their employment agreement, this may be a performance issue. There are both informal and formal ways to manage performance issues, which are different to the disciplinary process explained here.

Steps for employers to take

The following is a step-by-step process that employers may find useful.

Check if there is an agreed disciplinary procedure before starting, and make sure that you follow it.

If necessary, do some preliminary investigations to decide whether a disciplinary process is required. For example, read documents like emails, or speak briefly with someone who saw what happened.

If you need to talk with any other employees, take care not to embarrass the employee being investigated in case the concern turns out to be unfounded.

An initial conversation may provide clarity as to whether there is an issue to be resolved or addressed. Once you are satisfied that there is a good reason to have a conversation with the employee about the problem, go to step 2.

Send the employee a letter advising them what you know about the matter and why you think there may be a problem.

• Explain the proposed process to be followed and tell the employee they have an opportunity to comment on the process.
• Tell the employee about the possible consequences they are facing — for example, the outcome of the investigation could result in disciplinary action or dismissal.
• Advise the employee that they should participate in the process as needed.
• Advise the employee they may seek representation or bring a support person.

In certain serious situations, you may need to consider whether suspension is necessary.

Investigate the problem or allegation properly before taking any action against the employee. The nature of the investigation will depend on many factors including the seriousness of the issue and the potential consequences.

If the issue is minor, you may decide to just have a conversation with the employee.

• Make sure the conversation is documented. You should be clear with the employee about why you are documenting the conversation and what will happen afterwards. Send a copy of your notes to the employee so that they can comment on them and amend them to include their recollection of the conversation.
• Let the employee know that if the issue happens again, you may consider a disciplinary process.

If, after investigating the problem, you consider that the problem may amount to misconduct or serious misconduct, you should send the employee a letter inviting them to a meeting.

Letter of invitation to employee

• Clearly identify the misconduct or serious misconduct and all the evidence. Include any investigation report and witness statements (if these were not provided during the investigation process).
• Request a meeting to hear the employee’s explanation and feedback, and give them reasonable notice of the meeting, for example, 2 to 3 working days. If there is a lot of information in the investigation report, give the employee enough time to think through the report and prepare for the meeting.
• Set a time, date and place for the meeting. This might need to be flexible so that the employee’s representative or support person can attend. However, the employee’s request should not be unreasonable.
• Tell the employee what the potential outcomes are if the allegations or concerns are proven — for example, it could result in disciplinary action like a written warning or dismissal.
• Remind them to think about bringing a support person or representative to the meeting. Make sure you offer some form of support to your employee like an Employee Assistance Programme (EAP), if your organisation has one. Otherwise, direct them to a similar counselling option.

At the meeting

• A decision-making member of your employees should lead the meeting.
• Put the full allegations, concerns and investigation results to the employee.
• Make sure both parties have an opportunity to discuss the issues raised.
• Give the employee and/or their representative a chance to respond to the concerns.
• Once the employee has responded to your initial findings, the meeting should end, and the decision-maker should take some time to consider all the information and reach a decision.
• The decision-maker must not decide on an action before hearing the employee. They must not give the employee a pre-typed letter informing them of the decision immediately after hearing their comments.
• If you want to raise a new issue, you will need to give the details to the employee in writing, and delay the meeting to another time so the employee has time to consider these new matters before responding.
• Keep a written record of what is said in all conversations and at all meetings.

If the employee gives an explanation or provides information that was not available before, or which requires further investigation, you should check this to make sure it is (more likely than not) true or correct.

You must tell the employee about your intention to investigate in the same way you did at the start of the process.

If you need a second formal meeting after further investigation:

• give the employee an opportunity to comment on any new information
• record the meeting in writing.

The employee is entitled to bring a representative or support person to the meeting.

If you think that disciplinary action might now be an option:

• take time to consider your employee’s response and/or explanation
• keep an open mind as to what your decision should be
• remember that disciplinary action must be what a fair and reasonable employer would do in the circumstances.

• are your expectations reasonable?
• do you reasonably believe the employee committed the misconduct?
• do the facts confirm your beliefs?
• is the employee fully aware of the issues?
• has the employee had a genuine opportunity to respond to all the information you provided?
• are there mitigating factors to take into account, for example, workplace challenges, health or family issues?
• are there any alternatives to your decision?
• did you treat any other affected employees in the same or similar way (unless there is good reason to treat them differently)?

You must provide the employee with a ‘preliminary decision’, including details of any proposed disciplinary action.

• Allow the employee to respond to the ‘preliminary decision’ before a final decision is made. One way to do this is by setting up another meeting with the employee. Alternatively, you could send a letter to the employee with your preliminary decision and the reasons behind it, and give reasonable time for the employee to provide written feedback.
• You must consider the employee’s feedback, if they have any, with an open mind before making a final decision.
• Show how you have taken the employee’s comments into account by recording this in the decision.

Meet the employee and give your final decision.

• Explain why you have made your decision.
• Make sure the employee is given an opportunity to have their representative or support person present.

Confirm your final decision in writing.

• Sample letter – Written warning [DOCX, 30 KB]
• Sample letter – Final warning [DOCX, 33 KB]
• Sample letter – Termination of employment (dismissal on notice) [DOCX, 31 KB]
• Sample letter – Termination of employment (dismissal without notice) [DOCX, 24 KB]
• Sample letter – Employer decides not to take further action at the end of the process [DOCX, 26 KB]

NOTE

These sample letters only provide an example of how these may be written. They may not suit all disciplinary circumstances.

Common mistakes

Some common mistakes made by employers when carrying out a disciplinary or dismissal process are:

• making a decision before a proper investigation has taken place
• not explaining the process to the employee
• not telling the employee that they are allowed to bring a representative or support person to the meeting
• not interviewing all relevant people, or having a biased process
• waiting too long after the incident to interview people, so that their memories are no longer fresh
• conducting interviews in an unfair manner, like asking biased questions
• not telling the employee what the possible disciplinary outcome might be at the start of the process
• treating an employee differently to others who have acted the same way
• making decisions based on feelings rather than the facts
• handing the employee a typed letter of disciplinary action immediately after a discussion about the problem
• not giving employees enough time to get advice or prepare a response
• failing to consider the employee’s explanations for their behaviour.