All too often employers are ordered to pay large sums of money, sometimes in the thousands of dollars, to employees who have committed serious misconduct.Yes it does seem ridiculous, and if the proper processes had been followed, this would not be necessary.

A recent example involved an employee who struck someone.  The dismissal was later found to be justified, but the person was not consulted about their proposed suspension pending the investigation.

The employer was ordered to pay several thousand dollars in compensation, for breach of the employee’s right to a fair process.

An employer must follow proper steps when undertaking any disciplinary process regarding an employee in addition to the specific requirements of any employment agreement.

  1. If an issue has arisen about an employee’s behaviour then you need to speak with the employee about that behaviour.
    • You need to point out to the employee the unacceptable behaviour.
    • You should tell the employee what is expected.
    • Repeat allegations could lead to formal disciplinary proceedings.
  2. If you have the power to suspend in the employment agreement then you need to advise the employee that you are considering suspension and seek their input before you make the decision to suspend or not.
  3. If there is any repeat the employee should be given written notice to attend a disciplinary meeting at a set time and place.
    • The notice should set out what is alleged, refer to relevant clauses and the ability to bring a support person.
    • Set out the consequences if the allegation is proved.  For a minor matter the likely consequences will be a warning.  If a more serious issue could lead, if proved, to dismissal, then the notice should state that.
  4. It is vitally important to state that the matters are only an allegation and you should not indicate that any conclusions have been reached about the behaviour.
  5. At the formal disciplinary meeting you should explain that it is a disciplinary meeting to investigate their alleged failure and should set out the allegations.
    • You should ask the employee whether they accept or deny the allegations and whether they wish to give any explanation. Give them an opportunity to do so.
  6. Once you have heard their explanation, denial or acceptance you should advise them that you will consider that before deciding on whether the allegation is correct and if it is what action may be taken.
    • Tell the employee that you will notify them of the decision.  At this point you should conclude their involvement in the meeting.
    • You can then go on to consider whether you are satisfied with any explanation that has been given.
    • You should decide whether you need to make further enquiries into matters raised.
  7. After you have investigated any other matters and considered the explanation raised, you should decide what actually happened.
  8. If the allegations are correct then you need to decide what course of action to take.
    • If you are satisfied with the employee’s explanation then you should notify them of that.
    • The course of action will depend upon the seriousness of the allegation, any particular steps set out in the employment agreement and whether you have had to take action before.
  9. The decision you make must be confirmed in writing to the employee and a copy put on their file.
  10. If you issue a warning you should advise that if there is another lapse, further disciplinary action may be taken, which could put their employment at risk.
    • Your first warning should be a verbal one but should be confirmed in writing to the employee with a copy put on the file.
    • If there is a second or subsequent warning later on, this should be a written warning and once again a copy should be put on the employee’s file.
  11. If you have previously given a warning and the employee appears to be in breach of it then you need to repeat the steps above but you need to advise the employee that the potential outcomes will be at a more serious level.
    • The level depends on the circumstances and could be a written warning, a final warning or a dismissal.
  12. At each stage of the proceeding you must treat the matter as an allegation and put the allegation to the employee and give them an opportunity to make an explanation or accept or deny the allegations.
    • You should consider their explanations and make any further investigations.  Then decide whether the allegations are correct or not. If they are correct then decide what action you are going to take.

You should follow the stages set out above and you should not take any shortcuts, no matter how tempting they may seem at the time.  If you take shortcuts in the procedures then even if you would have been justified in taking disciplinary action against an employee you will be liable to the employee for breaches of the process.  That could include having to pay for lost wages, hurt and humiliation, plus legal costs and you may have to reinstate them to their position.