The employee disciplinary process: Dealing with employee issues fairly

Daniel Cowan, Partner

Employers can run into issues with Employees by not following their disciplinary processes or not dealing with the employee in a fair manner with good faith.

It is imperative that an employer carries out any disciplinary process fairly both:

  1. Substantively: The process must be fair and reasonable with regards to the misconduct of the employee; and
  2. Procedurally: The way in which the process is carried out.

When an employer is concerned that an employee’s conduct could be misconduct or serious misconduct, or the Employer receives a complaint about an employees conduct, the following steps need to be taken by the Employer to ensure the process is fair.

  1. Check your employment agreement for the process that is required to be taken for misconduct. If a process is prescribed and not followed ,then an employee may have grounds to lodge a personal grievance.
  2. Consider the conduct. If the conduct of the employee is sufficiently serious or their presence in the workplace could hinder any investigation and the employment contract allows, the suspension of the employee may be warranted. Without the ability to suspend being in the Agreement, only in very limited circumstances would suspension be warranted and justifiable.
  3. Conduct a full investigation of the misconduct. The manner and nature of the complaint has to be investigated promptly and confidentially with the employer interviewing all witnesses and gathering all relevant information. If the disciplinary process is necessary then a meeting should be set up with the employee to discuss the matter. The employee should be given at least 24 hours advance notice of the meeting and informed in writing of the following:
    1. The nature of the complaint
    2. The possible outcome of the meeting
    3. That the employee is entitled to bring a representative to the meeting.
  4. Conduct a meeting. This is the opportunity for the employer to raise their concerns and detail the complaint to the employee providing evidence obtained through their investigation. The employee must be given an opportunity to respond to the allegations.
  5. Decide whether the alleged conduct is substantiated. After the meeting the employer should take all of the evidence including the employee’s responses and decide on the balance of probabilities whether the alleged misconduct occurred
  6. Decide on the appropriate course of action. Depending on the conduct and the terms of the Employment Agreement, the employer will need to determine what action, if any, should be taken.

    The information contained in this paper is necessarily of a generalised nature and specific advice should be sought in relation to any particular situation. Further information and assistance in relation to this article can be gained by contacting senior personal property lawyer Daniel Cowan.