understanding disciplinary action

Understanding Disciplinary Action.Tips, Tools and Advice for Employers.

We’ve helped thousands of businesses like yours

employsure.com.au

Get free initial advice 24/7

1300 207 182

Redundancies | E-Guide

Contents

This e-Guide has been compiled on the basis of general information current at the time of publication. Changes in circumstances after publication may affect the completeness or accuracy of this information. To the maximum extent permitted by law, we disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, currency and reliability of the information on this website, and to seek professional advice where necessary. Nothing contained on this website is to be interpreted as a recommendation to use any product, process or formulation or any information on this website. For clarity, Employsure does not recommend any material, products or services of any third parties.

Part 1When Disciplinary Action May Be Required

Page 1

Part 2Common Disciplinary Action

Page 3

Part 3Non-Permissable Disciplinary Action

Page 5

Part 4Disciplinary Action Vs Bullying

Page 7

Part 5Tips For Safe, Fair Disciplinary Action

Page 10

Part 6When Can I Terminate A Staff Member?

Page 13

Part 7When Is Disciplinary Action Unfair?

Page 14

QuizTest your knowledge

Page 15

Understanding Disciplinary Action | E-Guide 1

Part 1 When Disciplinary Action

May Be Required

Sometimes, if an employee is behaving improperly in the workplace, an employer may need to raise and address concerns regarding the employee’s conduct by means of a formal disciplinary process.

It might be useful to consider the introduction and implementation of policies and procedures as to the expected standards of behaviour in the workplace, so employees know what is considered acceptable conduct. It is important to clarify misconduct.

MisconductGeneral misconduct is behaviour that is generally unacceptable; inconsistent with employee obligations or duties; or a

breach of company policy or procedure. Examples include unauthorised absences, lateness and bad language.

Serious Misconduct is defined in the Fair Work Regulations 2009 as wilful and deliberate behaviour that is inconsistent with the continuation of the employment contract or causes serious and imminent risk to the reputation, viability or profitability of the business, or health and safety of a person.

It includes theft, fraud, assault, intoxication at work or failure to follow a lawful and reasonable instruction that is in keeping with the employee’s contract of employment.


What Isn’t Misconduct?

Performance

This is where the employee’s skill level or quality of work is below what is required for the job, or they may not be meeting the standards outlined in their employment contract due to a lack of care or diligence rather than bad behaviour.

This requires Performance Management, where as part of a fair process the employee is given an action plan, further training, and an opportunity to improve their performance.

Capability

This is where the employee lacks the ability, or is incapable, of completing

the inherent requirements of their role, usually because of illness or an injury.

No clear or inconsistently applied policy or condoned behaviour

It is not fair to hold someone accountable for breaching a policy or procedure they were not aware of. Likewise, if sometimes a policy is enforced and other times it is not the employee may feel that it may not apply to them, or conversely that they are being singled out if it is enforced.

Finally, if you generally turn a deaf ear to bad language in the workplace then suddenly decide to enforce your policy against it through disciplinary action, it may be hard to make it stick.


Part 2 Common Disciplinary

Action While there is no specific way to undertake disciplinary action, it is recommended that you have a valid reason and follow a fair process, particularly if it may lead to a termination.

If you are required to undertake disciplinary action, here are some easy steps you can choose to follow to maximise the prospects of you having conducted a fair process:

• Investigate and establish the facts and consider suspension of the employee on full pay if the alleged conduct amounts to serious misconduct or there might be a reasonable threat to persons, property or the business.

• Write to the employee outlining the allegations, the possible ramifications if the misconduct is proven, the date and time for the disciplinary meeting, and the fact that the employee is entitled to bring a support person.

• The employee should be provided with a reasonable opportunity to prepare for the meeting. The standard should be at least 24-48 hours’ notice.

• The meeting is the employee’s

opportunity to present extenuating circumstances (if any) and the employer should close the meeting to take time to consider or further investigate the employee’s responses before deciding on the balance of probabilities if the allegations are substantiated.

• Consider the most appropriate outcome. A warning may be appropriate in the circumstances, or other outcomes, such as a letter of concern, reprimand, no action, final written warning, verbal warning, or even termination may be justified.


Progressive Escalation Of WarningsThis is where in the case of repeated (similar) misconduct the disciplinary process “progressively” escalates the disciplinary outcome in a series of steps. Over time this process may lead to termination of the employee’s employment.

For example, the first time the employee doesn’t turn up for work and doesn’t notify you of their absence as per company policy, you can start with an informal meeting and perhaps a Letter of Concern, then progress to a formal process and perhaps a verbal warning.

On the next occasion the outcome after a fair process may be a written warning, and eventually possibly a final written warning after a certain number of the same or similar incidents over a limited period of time – usually a year.

Positive (Disciplinary) Action and Counselling Sometimes the best results can be achieved by focussing on the positives rather than the negatives. Disciplinary action can often negatively affect the relationship between an employer and the employee, sometimes permanently. Depending on the circumstances, in the first instance it may be worth trying to change employee behaviour through positive reinforcement, coaching and mentoring.

Letter Of ConcernThis is not a formal warning but documents the fact you have raised your concerns with the employee and that you are both focussed on moving forward. It is however a clear, written management instruction the employee should comply with, as well as a useful record of expectations.


Part 3 Non-Permissable

Disciplinary ActionThe Fair Work Act 2009 protects certain employee rights, including workplace rights, and engaging in industrial activities, and offers protection from discrimination and sham arrangements. These are called the general protections.

Workplace rights include any benefits or responsibilities an employee may have under any workplace law, award or registered agreement, or order made by a body, including making a complaint or query regarding their employment, or initiating or participating in proceedings.

An employer must not take any adverse action against an employee or prospective employee because that person has, or has exercised or intends to exercise, a workplace right.

Adverse action is anything an employer may do that affects the employee negatively, and can include disciplinary action. Adverse action is unlawful if it is taken against an employee, a former employee or a prospective employee for a specific, protected reason or because of certain attributes, ie. the person’s race, colour, sex, sexual orientation,

age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be unlawful discrimination unless it is because of one or more protected employee attributes.


Further investigationif required

Consider mitigating factors and appropriate

outcomes

Allegations substantiated on balance

of probabilities?

Invitation to Disciplinary Meeting

Allegations

Possible outcomes

Support person

Disciplinary Meeting

24 hours after invitation

Responses to allegations

Clarify by questioning

Consider Suspension if Serious Misconduct

No Suspension

Disciplinary action not appropriate

Investigation

Deliver outcome verbally and follow-up

in writing

Flow Chart A Fair Disciplinary

Process Defined


Part 4 Disciplinary Action

Vs BullyingAccording to the Fair Work Act workplace bullying is when a person repeatedly behaves unreasonably towards a colleague at work in such a way that the behaviour creates a risk to the health and safety of the person on the receiving end. It also says that a “reasonable management action carried out in a reasonable manner” is not bullying.

What Is Management Action?Management action is action taken by an employee’s supervisor or manager and can include instructions regarding daily work activities and the way work is carried out, such as allocating tasks and duties, as well as constructive feedback regarding an employee’s performance.


The following are examples of management action:

performance reviews/appraisals

ongoing meetings to address underperformance

counselling or disciplinary action for misconduct

changing an employee’s duties eg a transfer or re-deployment

investigating alleged misconduct

denying an employee a benefit – a promotion for example;

refusing an employee permission to return to work due to a medical condition until they can provide medical clearance that they are fit to return to work.

However, an informal, spontaneous conversation between a manager and a worker may not be considered management action, even if any of the above are raised.

When is Management Action Reasonable?Whether the action taken is reasonable needs to be considered objectively, taking into account what the manager knows about the employee, and the specific circumstances before, after and during the act, for example the emotional and mental state of the employee.

Management actions do not need to be perfect to be considered reasonable, but they do need to be lawful and not ridiculous. As an extreme example, an employee who is new to the business may not understand the requirements of his role fully, so putting him on a performance improvement plan instead of offering training or mentoring is likely to be considered unreasonable.

Action is likely to be considered reasonable if it is part of a policy or procedure and everything is fully documented. It doesn’t matter whether the employee thinks the action is reasonable or not.


What Is A Reasonable Manner?It will depend on the action taken and the specific circumstances, including how the action effects the employee to some extent, though some degree of embarrassment and discomfort are inevitable. For example, if you are giving the employee constructive performance feedback, it will generally make the employee feel uncomfortable, however well-meant.

To act reasonably, the manager should consider the employee’s specific circumstances and make allowances accordingly. The employer should consider whether any disciplinary action

is necessary, or if they need to investigate the matter further before acting within an appropriate timeframe.

Again, managers should stick to any company policies and procedures when giving employees instructions or taking disciplinary action against an employee, and document everything.

So, it is not bullying if the manager takes disciplinary action against the employee when it is reasonable for the manager to do so in the circumstances, and the action is taken in a manner that is appropriate, and that follows an established process within the business.


Part 5 Tips For Safe, Fair

Disciplinary ActionIdeally, an employer will consider putting measures in place to try and negate the need for disciplinary action in your workplace. Below are some things to consider:

A Clear PolicyIt is important to have a clear Code of Conduct or a policy regarding Standards of Behaviour that is presented to the employees initially as part of their induction into the company.

Training And CommunicationDon’t assume that just because you have given the employee a policy, that

they have read and understood it. It is important to train employees in the expected standards of behaviour, and how to recognise and resolve issues. An employee may not be aware their comments are inappropriate or that they are making their colleagues feel uncomfortable, so counselling and some Bullying and Harassment training may be an appropriate first step.

Ongoing communication is key to ensuring your employees are across the company expectations on how to meet the required standards.


Quick Management Of IssuesIt is important to deal with any issues regarding employee behaviour as they arise, as often they can be nipped in the bud, perhaps with a meeting, a reminder as to company expectations and some training.

Disciplinary action, where necessary, should also be taken speedily in that there are no unnecessary delays throughout the process that leave the employee hanging as to what will happen next.

Consistent And Fair Application Of Policies And ProceduresIt is recommended you apply any policies and procedures (including the disciplinary process) consistently, in a fair and uniform manner. This creates certainty for employees and sets expectations as to possible consequences if they don’t comply.

Workplace InvestigationCarefully investigating the facts surrounding any issues may help an employer decide whether disciplinary action is necessary or even appropriate in the circumstances.

Letter Of ConcernThis is a letter that is usually sent to the employee to document that you have met with them informally to discuss your concerns, that you have agreed on a plan to address the concerns and that the employee is expected to carry out that plan.

It is not intended to be a formal warning and generally does not form part of the company’s disciplinary process; however, it is considered to be a reasonable written management instruction, which means it may form the basis for future disciplinary action if it is not complied with.

People Management made easy with BrightHR.BrightHR allows you to store employee profiles and key documents such as contracts,

policies and handbooks securely in the cloud while you determine your employees’

access levels.

You can upload updated policies and processes, set reminders and notifications of key

dates, and get read receipts once your employees have accessed the latest version.

You can even provide employees with online e-learning modules on various topics.

At a glance, BrightHR provides you with

• Secure, easy access cloud-based document storage

• Electronic time keeping with Blip

• Absence notifications and management

• Drag and Drop Roster planning tool

• Mobile accessibility

You can find out more here or call 1300 029 198.

brighthr.com/au

https://www.brighthr.com/au/

https://www.brighthr.com/au/


Part 6 When Can I Terminate

A Staff Member?

One of the trickiest aspects of being an employer is understanding dismissals, which is when the employer ends the employee’s employment, and more particularly, understanding when there are valid reasons for dismissal and if the dismissal process is fair.

Dismissal is defined in the Fair Work Act 2009 (the Act), and there are many Fair Work Commission decisions to indicate that it can be risky for employers to terminate employment, so it is important that you understand the circumstances in which it may be appropriate to dismiss an employee.

For the dismissal to be unfair, it must be harsh, unjust and unreasonable. This means that you should not dismiss any employee without a valid, sound, and defensible reason given the circumstances, and a fair dismissal process.

Valid reasons for dismissal are varied but include misconduct. Whether you can terminate an employee for misconduct after carrying out a fair and reasonable disciplinary process will depend on the particular circumstances.

A unfair dismissal may be:

unjust because the employee was not guilty of the alleged misconduct;

unreasonable because the evidence does not support the outcome;

harsh on the employee due to the economic and personal consequences resulting from the dismissal; or

harsh because the outcome is disproportionate to the improper behaviour (the punishment does not fit the crime).

You may be able to dismiss an employee on the basis of an escalation of warnings ie. for repeated warnings for the same or similar behaviour over a certain timeframe. In the case of serious misconduct, dismissal after just one incident (again after conducting a fair process) may be justified.


Part 7 When Is Disciplinary

Action Unfair?Disciplinary Action is unfair if it is undertaken for the wrong reasons, and another process or action would have been more appropriate, for example if the employee lacks the skills for the role, or if the employee can’t do their job for health reasons.

Disciplinary action may also be unfair if it results in a dismissal without a valid reason and a fair process being followed in making the decision to dismiss, and the dismissal is considered harsh, unjust and unreasonable.

In addition, the Fair Work Act 2009 protects certain employee rights, and an employer must not take any adverse action against an employee because that person has or has exercised a protected right. Adverse action is anything an employer may do that affects the employee negatively, which may include disciplinary action.

Dismissal or adverse action claims can be heard by the Fair Work Commission or in some circumstances the Federal Court. Each case is decided on its own merits, and the outcome may differ depending on the circumstances of each individual case.

Check your knowledge with our quiz on the next page!


Scenario 1An employee had to leave work early to pick up her primary school-aged son, after providing 24 hours’ notice to her employer. Her employer issued her with a final written warning, transferred the applicant against her wishes and demoted her and ultimately, she was dismissed.

Scenario 2An employee was gathering support from follow staff members to make a complaint to the School Board alleging bullying, harassment, and victimisation in the workplace by the Principal. This came to the Principal’s attention, and he suspended the employee on full pay pending an investigation and disciplinary action for serious misconduct.

Scenario 3An employer gave three employees the option of taking one month leave without pay instead of dismissal as a form of disciplinary action for a serious workplace health and safety breach. The employees alleged that the employer threatened them with dismissal to coerce them into agreeing not to exercise their right to attend and be paid for work.

Below are some actual instances of disciplinary action which may or may not have been found to be ‘unfair’ in the circumstances.

Which scenario may be Unfair Disciplinary Action in the circumstances?

Answers are on page 17!


Answers are on page 17!

A forced resignation is when an employee has no real choice other than to resign. Were the employees in the scenarios

below ‘forced’ to resign because of disciplinary action?

Scenario 4An employee who admitted to police that he had taken company property without authorisation resigned rather than attend a scheduled meeting with his employer about the matter.

Scenario 5An employee was subject to a disciplinary procedure relating to falsification of timesheets. The employee resigned before the employer had come to a decision in relation to the disciplinary matter.

Scenario 6An employee allegedly ‘leaked’ confidential information and was suspended and had his work access pass taken away while the matter was investigated. The employee claimed these actions forced him to resign.


Find out the answers belowNOTE: Every case will be different and just because a scenario was found to be unfair in the specific circumstances, no two cases are ever the same, and though similar may not have the same outcome if put to the test.

Answer 1In the circumstances it was found that this was an unexpected emergency resulting from the employee’s responsibilities as a parent, ie. carer’s responsibilities. It was found that adverse action was taken against the employee when the employer issued a final written warning as the employee was exercising a workplace right in respect of her carer’s commitments.

Answer 2 It was held that suspending the employee on full pay and subjecting the employee to a disciplinary process including an investigation may constitute adverse action in the circumstances, but further information was required.

Answer 3In the circumstances it was found that the employer offered the employees a choice, which they could choose to accept or not.

Answer 4This was held on the facts to be a voluntary and not a forced resignation.

Answer 5This was held to be a voluntary, not a forced, resignation in the circumstances.

Answer 6It was held that the employee was not forced to resign by the employer in the given circumstances.

Google can only help you so far. Sooner or later you need to

actually talk to somebody who is an expert in the field and that’s

where I found Employsure.Ursula Zajaczkowski | The Source Bulk Foods

Biggest thing from Employsure, it gives us certainty. Where we

have guidance and help of what we need in place, how to put it in place, and how to implement the

systems for HR.Jonathon Grealy | Niche Reform

Employsure has given me the freedom to run my business in a way that I need to. It’s given me the time and it’s actually taken

away a lot of worry that I previously had.

Kieran Syme | DentFree AutoTree

Employsure is one of the largest provider of employment relations and workplace health and safety services.

Why Employsure?At Employsure, we believe all Australian employers, no matter the size, deserve access to comprehensive, quality, honest advice and support that is scalable to the needs of their business.

Since the introduction of the Fair Work Act in 2009, workplace obligations have become more complex and difficult to manage, especially for overstretched small business owners.

Employsure was established in response to these challenges. It is our aim to ensure Australian business owners have access to cost-effective, professional advice on a variety of employment relations and work health and safety matters.

What we offerEmploysure provides customised documentation, unlimited advice, policy and procedure review and protection for small business owners.

Being an Employsure client means no surprises - we keep our clients updated on Award changes, wage updates and essential compliance issues. Our day and night advice line is available 365 days per year to guide employers through any difficulties they may face.

Get free initial advice 24/7

Call our free Employer Helpline now on 1300 207 182

understanding disciplinary action

Documents