If an employer wants to discipline an employee for misconduct, they must have a good reason for taking the action and they must follow the general principles of a fair process.
Usually a process will be written in the employment agreement or workplace policies. These should be followed. Where there is no agreed procedure to be followed then employers should use a careful, thorough and fair process for all forms of disciplinary action, including warnings, corrective action or dismissal.
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 these processes.
- If needed, do some preliminary investigations to decide this (eg read documents, speak briefly with someone who saw what happened or the employee who might be disciplined).
- If you need to talk with any other employees, care should be taken not to embarrass the employee being investigated in case the concern turns out to be not real or believable.
- Preliminary investigations should give an employer assurance that there is an issue to be resolved or addressed. It is not usually a good idea for an employer to raise an issue with an employee if they do not hold a reasonable-based 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, then they should inform the employee.
- Tell the employee what the problem is and the reason why you think there is a problem.
- Tell the employee of the possible consequences they are facing (eg a warning or dismissal).
- Detail the proposed process to be followed, including investigation, advising of the opportunity to comment on the process.
- Advise that they should participate in the process as needed.
- Advise them they may seek representation.
- If the employer is considering whether to suspend, this is the time that this should be considered and raised with the employee.
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.
Keep a written record of what is said in all conversations and at all meetings.
Prior to the meeting
- Send the employee a letter inviting them to a meeting, which should:
- clearly identify the misconduct and all of the evidence, including 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 (eg two to three working days). If there is a substantial investigation report give enough time for the employee to consider 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 can attend – although the request should not be unreasonable or extend the meeting too far out).
- advise the employee of potential outcomes if allegations or concerns are established (ie a warning, if misconduct, or employment may be at risk, if serious misconduct).
- remind them that they should consider bringing a support person or representative.
- Ensure you offer some form of counselling support to your employee such as an Employee Assistance Programme (EAP) if your organisation has an EAP programme. Otherwise, direct them to a similar counselling option.
At the meeting
- The meeting should be led by a decision-making member of the employer’s staff.
- The employer should put the full allegations or concerns to the employee.
- Both parties should have an opportunity to discuss issues of concern.
- Give the employee and/or their representative a chance to respond to the concern/s.
- Once the employee has been provided with a full opportunity to respond to the employer’s preliminary view, the meeting should be adjourned to enable the decision-maker to consider all the information and reach a preliminary decision.
- Do not decide upon an action before hearing the employee’s comments and do not present the employee with a pre-typed letter informing them of the outcome immediately after hearing their comments.
- If the employer wants to raise a new issue – they will need to give the details to employee and then adjourn the meeting (to another time) for the employee to have time to consider those new matters before responding.
- If the employee raises an explanation that has not previously been considered, the employee should check this to make sure it is (more likely than not) true or correct.
- Give the employee an opportunity to comment on any new information that comes out of that further investigation, if one is conducted.
If you think that disciplinary action might now be an option, then:
- take time to consider your employee’s response and/or explanation and have an open mind as to the outcome
- remember that disciplinary action must be what a fair and reasonable employer could do in the circumstances:
- 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)?
- Has the employee been fully aware of the issues?
- Has the employee had a genuine opportunity to respond to all of the information being considered?
- Are there mitigating factors to take into account (workplace challenges, health or family issues etc)?
- Are there any alternatives to your decision?
- Have you taken into account anything irrelevant?
- Have you treated 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, and allow the employee to comment on it before a final decision is made.
- You must consider the employee’s comments, if provided, with an open mind before making a final decision.
Meet and give final decision
- Communicate your decision to the employee.
- Explain why you have made your decision.
- Make sure the employee is given an opportunity to have their representative present.
Confirm final decision in writing.
The high level disciplinary process flowchart [PDF 167KB] supports this step-by-step process.
Some common mistakes made by employers when carrying out a disciplinary or dismissal process are:
- not interviewing all relevant people
- waiting too long after the incident to interview people, so that their memories are no longer fresh
- conducting interviews in an unfair manner
- 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 done the same things
- 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 long enough to get advice or prepare a response
- failing to consult all affected employees during a redundancy process
- failing to consider the employee’s explanations for their behaviour.