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The disciplinary process is a formal tool for managing and correcting unsatisfactory work performance, behaviour, or conduct. It helps employers work through issues with employees and to deal with problems before they become bigger.
Disciplinary process is clearly laid out in Australian employment law and must be fair and reasonable at all times.
A disciplinary process usually commences after an employee has failed to respond to counselling on their work conduct, behaviour, or performance.
When the employment relationship goes sour
There are lots of ways an employment relationship can go sour. It may be poor performance, a bad fit within the team, someone who has been promoted beyond their level of competence, or a change in business focus that has made staff uncomfortable.
Once you have taken initial steps to manage the situation, such as relationship-building exercises, performance improvement, changing positions, reexamining your hiring criteria, or counselling, you will need to step up your efforts.
The steps you take will depend on the situation and the outcome you want. If during the disciplinary process and on review of all the information, you think the relationship is recoverable, then the way you approach it will be quite different to a situation where the employee is unwilling to modify problematic conduct, behaviour or work performance.
Option 1: Clear your desk!
You can always tell an employee to hit the road, thinking that this can happen without further ado. But it’s not legal in Australia to exit a person solely because you feel you’ve exhausted all options and run out of patience.
Doing this will put you at serious risk of breaching the 'harshness criteria set out in Section 387 of the Fair Work Act 2009 (FWA), which could result in the Fair Work Commission (FWC) deciding on a potential payout to the employee or them being reinstated to their position.
Naturally, we don’t recommend this option (giving the person the option of resigning or being fired could be ruled a forced resignation, as well).
Alternatively, in discussing the employment contract, you and the employee may mutually agree to end the employment relationship or the employee may decide they don't want to continue employment.
In either of these cases, you should get the details of this arrangement (or resignation) in writing, noting the agreed end date of employment and the final payments due. Both you and the employee should sign the document.
If you can't get the resignation in writing and the employee is determined to leave, write to them to confirm what has been said and any final payment amounts due. It is important to give them the opportunity to respond to your correspondence prior to their last day of work.
We strongly recommend you get professional advice before you take any of these routes, to make sure you have done your best to mitigate any legal risks.
Learn more about safely terminating employment.
Option 2: Proactive management
Using regular, informal discussions and targeted feedback is an important part of developing and maintaining a healthy, productive relationship with your team members.
Work is important to people, and most employees want to perform in their role and enjoy their job. Good team members should respond positively to well-considered and well-timed feedback.
If you have any concerns about a person’s performance or behaviour, it is much better to catch it early, before it becomes established or turns into a bigger problem. An ounce of prevention is better than a kilo of cure.
Sometimes you will need more formal, focussed counselling to get the person to change their behaviour. If this fails and things don't improve, you can then choose to ramp up your efforts further and make the process more formal and binding, e.g. using a record of discussion or a performance improvement plan (PIP).
Find out more about effectively managing employee issues.
Option 3: Disciplinary
If informal and more formal counselling have not worked and things are still substandard, you can take formal disciplinary action.
The disciplinary process is about sending a clear message that the person’s performance, behaviour, or conduct is not acceptable and then working with them in a more focussed and structured way. It’s not about punishing the employee (though you may have to set aside any feeling that you want to). The goal is changing the performance or behaviour.
When dealing with unsatisfactory work performance, the process will often work best when paired with a PIP.
Steps in the disciplinary process
The disciplinary process involves 3 key stages:
1. Notification
This is where you formally present your concerns to the employee (potentially for the first time). You don’t need to give notice of this initial meeting, and it may be less stressful for everyone if it is somewhat impromptu.
This is a conversation so talk through your concerns. You can give the employee a document that details the issue(s) and how their performance or behaviour wasn’t up to the mark.
The employee doesn’t have to give a response on the spot. They might be shocked, defensive or angry about being formally disciplined, and they are legally entitled to take some time, seek advice, and come back with a prepared response to the concerns raised.
The time to prepare a response should be fair and reasonable. We advise giving them 2 working days, but if the employee asks for more time, up to 2 weeks is considered reasonable.
A meeting can be followed up at any time by a letter outlining or tracking the next steps in the process and what the potential outcome is – e.g. a formal or final warning, or dismissal.
If an employee requests time to seek advice on what their rights are or wants to have a representative or support person with them at a meeting, it is important that this request is considered and, unless exceptional circumstances exist, agreed to.
2. Response
This is the employee’s time to tell you their side of the story. Don’t predetermine the outcome, and listen. You can ask questions about their response, to clarify or elaborate on points, but they should be free to talk.
The employee is entitled to bring with them a representative (e.g. advocate or lawyer) who can speak on their behalf or a support person (partner, friend or relative), who is not there to speak for them. The employee is responsible for paying for any advice or representation.
At the end of the meeting, you should have a good understanding of their explanation and how you want to proceed. They may have raised further questions that need investigating, or they may accept they need to improve.
You shouldn’t make a decision then and there. The next step in the process is to go away and fairly consider all the evidence and make a decision.
Find out more about running an effective employee response meeting.
3. Outcome
This is where you present your decision. You may have decided to proceed with a formal warning or the employee may have brought to light information that proved it was not their fault or there were extenuating circumstances.
As well as the verbal statement, it’s best to set out the decision in a letter that details the information presented by both parties, how the employee’s feedback was factored into the decision, how long any disciplinary action is valid for, and what the next steps are for supporting their improvement, e.g. further training or changes to their duties.
Important things to get right
The main reason the disciplinary process exists is to ensure your employees are treated fairly and reasonably and that the employer creates an environment where they can obtain information so they can consider the facts and circumstances and make a fair and reasonable decision.
The process by which you manage and examine the concerns or allegations is as important as the concerns themselves. So you need to ensure:
- You follow the correct steps in the process.
- You have a good reason for undertaking the disciplinary action.
- The employee is aware of the allegations against them (if you are dealing with a complaint from a third-party, colleague or customer, and you must have all the details).
- The employee has the opportunity to seek advice and prepare their response.
- The employee has a chance to give you their feedback. They don’t have to do so, but they must be given the opportunity.
- You consider their feedback in your decision.
Things to watch out for
New information comes to light
Through the course of the process you may find out the problem was bigger than first thought or that the employee wasn’t responsible at all. This may cause you to go back to the beginning of the process, possibly dealing with another employee or other employees.
Employee delays or has a difficult representative
Sometimes, the employee can attempt to drag the process out, delaying or postponing meetings. It may be they know they are in the wrong and don’t want to front up or they have been advised to delay the process by their advocate. This can be frustrating and ratchet up the emotional intensity of the process.
The person’s representative or advocate may also be combative, which can hinder discussion and constructive resolution.
In these instances, it’s important to stay calm, focus on following the correct process, and treat the employee fairly and reasonably. You’re busy, it could be exasperating, and you might want to end the employment relationship as fast as possible, but doing that could well come back to bite you.
Rushing to judgement or predetermining the outcome
As the employer, you cannot make a judgement without consulting with the employee and taking their response into account. Even if it appears to be a cut-and-dried case with convincing evidence of wrongdoing, you must follow fair process.
Presenting your concerns to the employee and considering their feedback is integral to the process (the right of reply to any allegations is a cornerstone of a “fair go all round”).
If you just give them a formal warning without undergoing fair and reasonable process, the employee will have a very strong case for seeking a protection order and you could end up having to pay them money or alter their employment circumstances.
The employee isn’t at fault
Sometimes, the employee will have a perfectly good explanation for their conduct or performance. This can make you look vindictive for putting them through the formal disciplinary process.
Doing thorough preparation before you start the process should mean you aren’t making unfounded assumptions, blaming a troublesome employee for things they haven’t done, or you have missed the point entirely.
If you have solid grounds for proceeding with disciplinary action and you’re still proven wrong, you will need to make efforts to rebuild the relationship. You will have burnt some goodwill and the employee could (understandably) feel hard done by, misunderstood, or harshly judged. Time to apologise and eat some humble pie.
Next steps
Success!
Hopefully, the disciplinary process works as a corrective tool and the employee’s behaviour or performance improves afterwards.
Do everything you can to support this improvement, with guidance, counselling, training, and regular check-ins. Make sure you keep your side of the bargain and do whatever you say you will. You might even organise a little something as a celebration or reward.
Or... continue the disciplinary process
In some cases, the employee continues to perform or behave badly, and you’ll be stepping closer to moving them out of the business. In this case, you can hold them closely to account through a consecutive disciplinary performance management process.
If this is the case, you should be sure to give the person written warnings before you look at dismissal for misbehaviour, misconduct, or continued poor performance. This could be a first warning. It could be a first and final warning for misconduct. There could be subsequent warnings to the point where you issue a final written warning, with dismissal as not only an option on notice, but possibly a likely outcome.
It usually takes time to reach a conclusion using this process, which can be arduous, and it may be tempting to rush to dismissal. Don’t. Unless the conduct is a serious breach of the employment contract/relationship, case law has established that before it is fair to dismiss a person, they need formal warning that their conduct, behaviour, or performance needs to improve and they are given the opportunity to do so.
A word of warning about verbal warnings
Verbal warnings aren’t uncommon in business, but we don’t recommend them. Case law has established that in order for a warning to be fair and valid, there has to be a consultation process prior to the warning being issued.
Verbal warnings (or cautions) are often issued on the spot or after an informal discussion with the employee, which means fair and reasonable process hasn’t been followed if you rely on them solely.
Making sure you undertake fair process with a clear, demonstrable paper trail is much more robust.
