Everyone
Disciplinary process
A careful, fair, and thorough process must be followed when an employer is considering disciplinary action. If not, an employee may have grounds to raise a personal grievance.
What is disciplinary action?
Disciplinary action should be seen as a corrective measure which is aimed at preventing further When an employee does something wrong through their actions or inaction, or their general behaviour. It can be at 2 different levels: misconduct and serious misconduct.
The most common types of disciplinary action are warnings and, in serious cases, When an employer removes an employee from their job, for example, as a result of misconduct or redundancy.
Disciplinary action can also include:
- counselling
- suspension from work
- removing certain privileges
- a requirement to attend courses
- reassignment to another role or workplace
- in rare instances, demotion.
Disciplinary action must always be fair and reasonable. An employer must:
- have a good reason for undertaking the disciplinary action, and
- follow a fair process before deciding what disciplinary action to take.
If an 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.
Disciplinary process
An employer should set out in writing:
- what type of behaviours are considered misconduct and serious misconduct
- what disciplinary actions may be taken and when
- how any disciplinary process works.
This could be included in the A written document setting out the terms and conditions of employment agreed by the employer and employee (also known as a ‘contract of service’). It can include other contractual documents and agreements made by the employer and employee. Every employee must have a written employment agreement. Workplace policies and procedures explain the rules and expectations in the workplace.
Where there is no agreed process, employers must use a careful, thorough and fair process.
Following a proper disciplinary process will help an employer resolve an issue before it becomes bigger or impacts more widely on the workplace.
Steps an employer could take during a disciplinary process
The following is a step-by-step process based on good practice that employers may find useful.
Check if there is an agreed disciplinary process 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. Do this as soon as possible. An unreasonable delay could result in an unfair disciplinary process.
In the letter:
- explain the proposed process to be followed and tell the employee they have an opportunity to comment on the process. Genuinely consider any comments the employee makes after receiving the letter and if you make any changes to the process, let them know.
- tell the employee about the possible consequences they are facing — for example, the outcome of the disciplinary process could result in a written warning or dismissal. If a possible outcome is dismissal, you should also tell the employee if this dismissal could be without notice.
- advise the employee they should participate in the process as needed.
- advise the employee they may seek representation or bring a support person to any meetings.
In certain serious situations, you may need to consider whether suspension is necessary.
Sample letter – Suspension pending investigation [DOCX, 34 KB]
Investigate the problem or allegation 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.
When you have this conversation, document it. 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.
For more serious or complex issues, there are a number of important considerations when undertaking an investigation:
If, after investigating the problem, you consider that the problem may amount to misconduct or serious misconduct, send the employee a letter inviting them to a meeting.
Letter of invitation to employee
- Identify the potential misconduct or serious misconduct and all the evidence. Include any investigation report, witness statements and other relevant evidence (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 you have provided a lot of information, give the employee enough time to think through the information 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, any request from the employee to reschedule should be reasonable.
- 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 representative or support person 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.
Sample letter – Invitation to attend disciplinary meeting about potential misconduct [DOCX, 22 KB]
Misconduct and serious misconduct
At the meeting
- Make sure the right people are at the meeting. Get an appropriate person to lead the meeting. The person leading the meeting doesn’t need to be the decision-maker, but if not, give the employee the opportunity to engage directly with the decision-maker. Anyone involved in the potential misconduct cannot be the decision-maker.
- If the employee has chosen not to bring a representative or support person to the meeting, remind them of their right to do so and confirm they are happy to proceed without one.
- Put the full allegations, concerns and investigation findings 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.
- Wait to make a decision on any action until after meeting with the employee. Do not give the employee a pre-typed letter informing them of the decision immediately after hearing their comments. Take some time to consider all the information and reach a decision.
- If you want to raise a new issue, 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.
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 could do in the circumstances.
Ask yourself:
- 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)?
Before you make a final decision let the employee know in writing what disciplinary action, if any, you are proposing (your ‘preliminary decision’).
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, 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.
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 throughout the disciplinary process into account by recording this in the decision.
Sample letter – Preliminary decision providing an employee time to respond [DOCX, 28 KB]
Meet with the employee and give your final decision.
Make sure the employee is given an opportunity to have their representative or support person present.
At the meeting, explain why you have made your decision. In this explanation, show how you have taken into account any comments the employee made on your preliminary decision.
At the end of the meeting or soon after the meeting, provide the employee with your decision and explanation 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]
Common mistakes by employers
Some common mistakes made by employers when carrying out a disciplinary process are:
- not following any agreed disciplinary process
- 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 taking notes of meetings
- 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 pre-typed decision letter 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.