An employer faced an order for $17,000 compensation and $13,000 lost wages after failing to follow proper processes at a disciplinary meeting. The employer had failed to tell the employee they were entitled to a support person at the disciplinary meeting, failed to tell them their employment was at risk, failed to tell the employee what their concerns were and failed to listen to the employee’s responses.  The Employment Relationship Authority held that the procedure was so blatantly lacking in natural justice that any issues of the contribution by the employee (failure to follow instructions and procedures) would not reduce the remedies.

In all HR matters it is necessary to follow a fair process.  In the case of a disciplinary investigation, this includes following any process agreed in the employment agreement, and giving the employee:

  1. Sufficient detail for them to be able to properly respond.
  2. A copy of the letter of complaint/allegations.
  3. An opportunity to take advice before they respond.
  4. A chance to give a response.  This is usually face-to-face, but may also be in writing.
  5. Advice of their right to a support person when attending any meeting.
  6. Information about the possible consequences.  What is the most serious thing that could happen?  Is it a warning or dismissal?

You should then:

  1. Consider all matters raised by the employee and investigate those matters.  Do not make on the spot decisions.  These show that you have not taken time to consider what the employee had to say.
  2. Once you have decided what happened, you must then decide what to do about it.  Again give the employee a chance to give their input into any outcome.
  3. Do not have a termination letter or final pay made up before the meeting – this would show you have made up your mind and are not prepared to listen to employee input.
  4. Be consistent – do not expect standards you do not insist on from others of a similar level.  Outcomes should also be consistent for similar conduct.

Even if you are completely justified in the actions you eventually decide to take, you will be tripped-up if you do not follow a fair process to get there.

Employment disciplinary hearings of sub-standard work are legal mine fields.  We can assist in guiding you through the process, and some clients have us run the process for them so that there are no missed steps.

The information in this article is necessarily brief.  Full guides to handling disciplinary investigations, including our free guide to the disciplinary process, are available in our Downloads section or by calling Alan Knowsley.