Disciplinary process

All disciplinary action for misconduct must be carried out fairly, or the employee may have a personal grievance claim against the employer.

Follow a fair process

If an employer wants to discipline an employee for misconduct, they must have a good reason for taking the action. Employers must follow the principles of a fair process.

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

Note: If an employee is not doing their job, or performing poorly in relation to their employment agreement, this may be a performance issue (sometimes called poor performance). There are both informal and formal processes to manage performance issues, which is different from the disciplinary process explained on this page.

How to manage performance issues

Steps for employers to take

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

Check for any agreed disciplinary procedure before starting and make sure that you follow it.

If needed, do some preliminary investigations to decide whether a disciplinary process is required (eg read documents such as emails, speak briefly with someone who saw what happened or the employee who might be disciplined).

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 not real or believable.

An initial investigation should give an employer assurance that there is an issue to be resolved or addressed. It is not a good idea for an employer to raise an issue with an employee if they do not have a reasonable belief that there is an issue.

Once the employer holds a reasonable belief that there is a good reason to have a conversation with the employee about the problem, they should tell the employee.

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

  • Detail the proposed process to be followed, including investigating the matter, and advise the employee of their opportunity to comment on the process.
  • Tell the employee about the possible consequences they are facing (eg 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, the employer may consider whether suspension is necessary.

Sample letter – Informing the employee of the matter and that you will be investigating [DOCX, 24 KB]

Sample letter – Suspension pending investigation [DOCX, 34 KB]

Suspending an employee process

The employer must sufficiently investigate the problem or allegation before taking any action against the employee. The size 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. The employer should be clear with the employee about the purpose of documenting the conversation and what will happen afterwards. Send a copy of your notes to the employee so that they can comment on it and amend it to include their recollection of the conversation.
  • Let the employee know that if the issue happens again, you may consider a disciplinary process.

How to conduct an investigation

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 of the evidence. Include any investigation report and witness statements (if not provided during the investigation process).
  • Request a meeting to hear the employee’s explanation and feedback, and give them reasonable notice before the meeting starts (eg two to three 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 may need to be flexible to ensure that the employee’s representative or a support person can attend. However, the employee’s request should not be unreasonable or extend the meeting too far out.
  • Advise the employee of potential outcomes if allegations or concerns are proven (eg it could result in disciplinary action, such as a written warnings 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 such as 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]

Sample letter – Invitation to attend disciplinary meeting about potential serious misconduct [DOCX, 23 KB]

Misconduct and serious misconduct

At the meeting

  • A decision-making member of the employer’s staff should lead the meeting.
  • The employer should put the full allegations, concerns and investigation results to the employee.
  • Both parties should 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 the employer’s initial findings, the meeting should end and the decision maker will take some time to consider all the information and reach a decision.
  • The decision maker must not decide upon an action before hearing the employee and must not give the employee a pre-typed letter informing them of the decision immediately after hearing their comments.
  • If the employer wants to raise a new issue, they will need to give the details in writing to the employee and then delay the meeting to another time so the employee has time to consider those 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 information that was not available before or that requires further investigation, the employer should check this to make sure it is (more likely than not) true or correct.

The employer will need to tell the employee of the intention to investigate in the same way that they did at the start of this process.

If the employer needs a second formal meeting after further investigation:

  • give the employee an opportunity to comment on any new information
  • the employee can bring a representative or support person
  • record the meeting in writing.

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

  • take time to consider your employee’s response and/or explanation
  • have 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 you feel that, when you consider everything, it is more likely than not that they did the action alleged)?
  • 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 of the information you provided?
  • Are there mitigating factors to take into account (eg workplace challenges, health or family issues etc)?
  • Are there any alternatives to your decision?
  • Did you take into account anything irrelevant?
  • Did you treat any other affected employees in the same or similar fashion (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 through 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 give written feedback.
  • You must consider the employee’s feedback, if 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.

Sample letter – Preliminary decision providing an employee time to respond [DOCX, 28 KB]

Sample letter – Invitation to attend meeting to respond to proposed disciplinary action [DOCX, 25 KB]

Common mistakes

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

  • making a decision before a proper investigation
  • not explaining the process that will be followed to the employee
  • not telling the employee that they are allowed to bring a representative or support person to the 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, such as 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
  • making decisions based on feelings rather than the facts
  • handing the employee a typed letter of disciplinary action or dismissal straight away at the end of 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.

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Page last revised: 28 February 2020

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