Getting the employment disciplinary process right…

Employers must follows a fair process in a disciplinary investigation. The employment agreement (individual or collective) might set out the process to be followed

1.    (i) Speak with the employee about their behaviour.

       (ii) Point out what behaviours are unacceptable.

       (iii) The employee should be given clear standards to aim for and a genuine opportunity to improve.

2.    (i) If the matter is too serious, or it is not the first time, is there a power to suspend and it is necessary to do                  so?

       (ii) Give an opportunity to comment on whether they should be suspended or not.

       (iii) Give written notice to attend a disciplinary meeting at a set time and place, specifying what it is alleged.                   Allegations only, not conclusions.

       (iv) Advise to have a support person or lawyer assist them.

       (v) Set out the consequences if the allegation is proved.

3.    (i) The disciplinary meeting is for the employee to give any explanation or whether they accept or deny the                     allegations.

       (ii) The allegations should then be investigated further to check on the explanations given or to gather further                 evidence if the employee has raised the existence of possible relevant evidence e.g. in records or from                       others.

4.    (i) All the evidence needs to be considered, along with the explanation raised by the employee, to decide                          whether or not that the allegations are proved.

5.    (i) If the allegations are proven what should the outcome be? Is it nothing, a verbal warning, a written warning,                a final warning or dismissal?

       (ii) The employee must be told in writing the decision on the allegations, the reasons for reaching that                                conclusion and what outcome by way of penalty is being considered.

       (iii) The employee should be given an opportunity to have input into the proposed penalty. This can be at                          another meeting or in writing if they prefer.

       (iv) Any input should be considered before deciding on the penalty.

       (v) Decide what the penalty will be and communicate that in writing to the employee. The penalty must fit the                  seriousness of the misconduct and must be what a fair and reasonable employer could do in the                                  circumstances. The circumstances will include whether the employee has had warnings previously, as                       well as how long ago they were.

It is vital to follow a fair process. Many an employer would have had good grounds to discipline an employee, but got tripped up by not following a fair process. This can result in a personal grievance for unjustified disadvantage or unjustified dismissal and lead to substantial compensation being paid to the employee following their misbehaviour. Get the process right, so that the issues then are only what has happened and what should the fair and reasonable outcome be.