The disciplinary process is a formal tool for managing and correcting employee misconduct or unacceptable behaviour. It helps employers work through concerns with employees and give them the opportunity - and support - to change their behaviour.
You would usually take disciplinary action after an employee has failed to respond to less formal management techniques, such as feedback or counselling, but there may be times when you need to take an employee through the disciplinary process for a single instance of misconduct.
As an employer you need to have a valid reason for taking disciplinary action, follow fair process, and adhere to the provisions of the applicable modem award, enterprise bargaining agreement (if one exists), as well as the person’s employment contract and any company policies.
Employee misconduct can harm workplace productivity and damage the employment relationship. Whether it’s caused by a clash of personalities, someone struggling with issues outside work, or a change in business focus that staff members aren’t comfortable with, you need to correctly identify the issue so you can address it with the right process.
Because a problem with poor performance will require a different response (i.e. performance management) than an issue with employee conduct.
Initially, you will probably take proactive steps to manage the situation and provide the person with a clear understanding of what acceptable behaviour is, but if these don’t produce the desired results, you will need to step up your efforts.
The disciplinary process holds people accountable for their workplace behaviour and sends the right message to the rest of your employees that poor behaviour isn’t okay and that you want to work with people to change.
Discussing a behaviour concern with your employee may seem unnecessary. Surely, if there is an obvious problem, then you should just issue them with a warning and get on with it, right?
Not quite. Your efforts in engaging in the proper process to reach an outcome is really important, especially if you end up terminating the employment relationship. We cannot stress this enough!
You might have a perfectly legitimate reason to take action against an employee for unsatisfactory conduct but if you do not follow due process, your actions may be seen as harsh, unjust, and/or unreasonable - and therefore invalid. Employees have the ability to pursue a claim for either unlawful or unfair termination, and we recommend seeking advice before you consider taking this type of action.
Claims made against you can lead to compensation payments and legal bills, and you may have to withdraw or retract your decision to terminate, therefore re-instating the employment relationship.
The main reason the disciplinary process exists is to ensure employees are treated fairly and reasonably, and that you create an environment where you can obtain information so you can consider the facts and circumstances and make the right decision.
You must not predetermine the outcome. Any decision is not final until you have given the employee an opportunity to put forward their side of the story, and you have taken their views into account.
We use the term “allegations” to indicate that the misconduct is alleged until proven to have occurred.
Additionally, keep in mind that not all misconduct matters are equal - a process you undertake for an allegation of being late to work will differ somewhat from one you undertake for an allegation of theft or bullying.
We recommend you keep a chronology of events or a diary of what you know, who complained to you, what past conversations have taken place, and more.
You’ll now want to start to plan your process:
Before you make any decision on an outcome, you need to gather the facts or various points of view. If you are running a formal process you will need to ensure you:
Depending on the nature of the allegations (remember running late is not the same as theft) you can choose one of two options during the formal meeting:
In both instances it is important you remind the employee of:
Your employee has now either reviewed the record of discussion or responded in writing to the allegation letter. They may request that you schedule a follow-up meeting for a further discussion of their response or to ask you questions before you make your final decision.
This is also a formal meeting that requires notice, option for a support person, and the right location. It is also a meeting that needs to be documented and the notes shared with all parties for their record.
You can now take a moment to decide the outcome of your process. You may want to close the matter quickly (especially if you feel the employee needs urgent closure), however, we recommend that you take the time to review all the evidence and points of view, then make a decision.
You also do not want to be perceived to have made a quick decision that didn’t properly take the employee’s response into consideration.
You will now schedule an outcome meeting, which is also formal meeting (remember this means notice and support person)
Having run a formal process, you will need to document your outcome formally as well, we call this an outcome letter. The outcome letter is intended to:
Let’s take a closer look at the possible outcomes:
The allegations were not substantiated, unable to be substantiated, or the employee had a reasonable explanation for their behaviour.
For good reasons, you may deem a verbal warning is the appropriate response and you decide to change from a formal to informal process. You should still capture this outcome in a letter to close out the process.
Formal written warnings are for serious breaches of the terms and conditions of employment including company policies. Note you can issue a second or third warning for subsequent breaches before leading to termination.
This explains that further instances of misconduct may result in the termination of employment.
Termination is only an option in cases of proven gross misconduct, e.g. violence, theft, being intoxicated at work, or for misconduct that follows prior warnings.
Our post on termination will help ensure you follow the correct procedure.
Additionally you can include further outcomes such as training, counselling, issuing an apology or the agreement of an action plan following the conclusion of the process.
Sometimes, it may be unclear if you need to commence a disciplinary process for a performance issue, misconduct or both. It can get complicated if, for example, the misconduct is linked to a lack of training or performance concerns.
You can run two processes, i.e. deal with any misconduct then address performance separately through a performance improvement plan.
Be clear on who the decision-maker is for matters of this nature in your business. If you are a senior leader, you may need to consult and inform the CEO or the board on specific matters, and seek their support for the decision you are recommending.
Always involve key stakeholders in your decisions and avoid acting emotionally or alone. It is important that you have a trusted partner to guide and support you as these processes can take an emotional toll.
MyHR has helped thousands of businesses with disciplinary processes. Our expert advisory team provides scripts, documentation, and guidance to ensure you get the best result and minimise your legal risks. Our powerful HR platform makes managing documentation a breeze, whether it’s capturing and collating notes on employee conduct, or tracking and analysing your team’s performance.