D2 - Disciplinary and Misconduct Procedures

Employee disciplinary and misconduct procedures are designed to provide a structured, transparent and equitable time-based process where managers and employees can discuss deficiencies in conduct and the severity of this conduct and, where appropriate, implement a planned and agreed strategy to ensure the misconduct is not repeated.

A disciplinary procedure is used by an employer to address an employee's conduct or performance.

Disciplinary procedure

Step 1: Understanding the options

Step 2: Following a fair procedure

Step 3: Carrying out an investigation

Step 4: The hearing

Step 5: Deciding the outcome

Step 6: After the disciplinary

A disciplinary procedure is a formal way for an employer to deal with an employee's:

• 'misconduct' (unacceptable or improper behaviour)
• 'capability' (performance)

Before starting a disciplinary procedure, the employer should first see whether the problem can be resolved in an informal way. This can often be the quickest and easiest solution.

The employer should try solving the issue with their employee by:

• privately talking with them and any other staff involved
• listening to their point of view
• agreeing improvements to be made
• setting up a training or development plan, if it's a performance issue
• Dealing with capability issues

Capability or performance is about an employee's ability to do the job.

Some employers might have a separate procedure for dealing with capability or performance issues that should be based on:

• support
• training
• encouragement to improve

Whether the employer deals with the issue under a capability or disciplinary procedure, they must do so fairly.

What counts as misconduct

Misconduct is when an employee's inappropriate behaviour or action breaks the organisation's rules.

Some misconduct examples include:

• misdemeanours, including inappropriate behaviour
• making improper use of one’s position for personal gain
• failure to comply with organisational policies or a provision of any statute or regulation that applies to the employee in the employee’s employment
• unauthorised absence from duty
• inappropriate use of organisation’s property and facilities
• bullying
• harassment
• 'insubordination' (refusing to do work)
• being absent without permission (some people call it absent without leave or 'awol')

But your organisation might have its own examples.

If misconduct happens outside work

An employee could face disciplinary action for misconduct outside work. For example, where an employee's behaviour in front of external clients at the work Christmas party reflects badly on the company.

It depends on how serious the employer sees the misconduct and whether it could have a bad effect on the business.

It's important the employer carries out a thorough investigation and can show the effect on the business.

When there is serious misconduct

Some acts count as ‘serious misconduct' because they are very serious or have very serious effects.

Serious misconduct includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment (which could take the form of criminal behaviour) and/or conduct that causes serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business.

Where serious misconduct is involved, it may not be appropriate to follow each of the steps below concerning counselling, informal verbal warnings or formal written warnings.

If an employer finds there has been serious misconduct, they should still carry out an investigation and the full disciplinary procedure. They might then decide on dismissal without notice or payment in lieu of notice.

Examples of serious misconduct at work could include:

• fraud
• physical violence
• sexual assault
• 'gross negligence' (serious lack of care to their duties or other people)
• serious insubordination, for example refusing to take lawful and reasonable orders from a supervisor

What is seen as serious misconduct can depend on the organisation. Your organisation might have its own policy or rules with examples.

An employer may initiate the disciplinary process at any stage of this policy, where deemed appropriate, dependent on the seriousness and circumstance of each case. That is, if a matter is deemed serious, you may begin the disciplinary process at any of the steps, dependent on the facts surrounding the matter.

Typically, an organisation reserves the right to undertake an alternative procedure where the matter is considered to be serious misconduct. In such matters, the organisation may suspend the employee with or without pay and / or temporarily transfer the employee to an alternative work unit during the conduct of an investigation.

The disciplinary procedure in most cases involves a four-stage progression:

Step 1. Verbal Warning

After observing or being notified of misconduct by an employee, the manager should establish the facts and consult with Human Resources for advice and support as soon as possible. The manager will:

• gather relevant facts and assess any relevant documentation
• undertake an interview with persons who may (or should) have knowledge of the employee’s behaviour and who may have witnessed any incident or event
• review any relevant policies and procedures, taking into account the employee’s past record and
• prepare a chronology of events to record what has occurred, and make a critical assessment to determine an appropriate course of action.

Once sufficient information (facts) has been collected, the manager should arrange an appropriate time to meet with the employee concerned.

A verbal warning will be issued describing the offending action / behaviour, its effects, and consequences. The manager will also specify the corrective action and future behaviour required. An agreed and reasonable period for monitoring and review will be established.

The objective of this step is for the matter to be resolved without progression or escalation. The employee must be given the opportunity to respond to issues raised. After the meeting, the manager will complete the Employee Discipline Record of Meeting form and record succinct and detailed factual notes.

Step 2. First Written Warning

Where the employee’s behaviour does not improve and remains unacceptable, or a subsequent related issue has been raised, a written warning may be issued.

The manager will arrange a meeting with the employee and provide an opportunity for the employee to respond to the issues raised. At the meeting, the manager will provide:

• details of the unacceptable behaviour
• reiteration of acceptable behaviour
• reference to previous meetings and support provided to resolve the matter
• time frame for monitoring and reviewing progress
• a future meeting time to assess ongoing employment and
• advice to the employee that failure to address the concern may result in termination of employment.

After the meeting, the manager will prepare the Managing Misconduct and Discipline Record of Meeting Form and, if satisfied that the concern has been substantiated, advise Human Resources to issue the First Written Warning detailing the discussion at the meeting.

The written reprimand will include a section for the employee to acknowledge its contents. If an employee refuses to sign the acknowledgement, the manager will duly note the document. A copy of the completed form will be provided to the employee and a copy placed on the employee’s employment file.

Step 3. Final Written Warning

If the required behaviour change still does not occur within a specified and agreed time, a final written warning will be issued. The manager will arrange a meeting with the employee, which is to also be attended by a Human Resources team member.

At the meeting, the manager will provide:

• details of the unacceptable behaviour
• reiteration of acceptable behaviour
• reference to previous meetings and support provided to resolve the matter
• time frame for monitoring and reviewing progress
• a future meeting time to assess ongoing employment and
• advice to the employee that failure to address the concern may result in termination of employment.

The employee will be given an opportunity to respond to matters raised. After the meeting, the manager will prepare the Managing Misconduct and Discipline Record of Meeting Form and, if satisfied that the concern has been substantiated, advise Human Resources to issue a Final Written Warning detailing the discussion at the meeting.

The written reprimand will include a section for the employee to acknowledge its contents. If an employee refuses to sign the acknowledgement, the manager will duly note the document. A copy of the completed form will be provided to the employee and a copy placed on the employee’s employment file.

Step 4. Notice of Dismissal (Termination of employment)

A meeting will occur if after a final written warning has been issued and, with a reasonable period of time to monitor and review, it is evident that the behaviour has not and will not reach the expected standards.

The manager will contact Human Resources to discuss and review the entire discipline process to date to ensure it has not been harsh, unjust or unreasonable.

It is best practice that any decision to terminate an employee must be endorsed by the Chief Executive Officer (or equivalent) in consultation with Human Resources. The manager will then arrange a meeting with the employee which is also to be attended by a Human Resources team member.

At the meeting, the manager will:

• advise that the unacceptable behaviour has continued
• reiterate the behaviour that was required, and
• provide details of previous meetings, counselling and warnings issued.

The employee will be provided with an opportunity to respond and give reason or provide details of any other relevant matters that may avert their potential termination of employment. After taking a reasonable time to consider the employee’s response, if it is determined termination is appropriate, the employee will be provided with confirmation of the termination of their employment in accordance with organisations policies concerning termination and the Fair Work Act 2009.

After the meeting, the manager will prepare the Managing Misconduct and Discipline Record of Meeting form and a copy will be placed on the employee’s employment file. The notice of termination will be applied in accordance with company policies or the National Employment Standards, whichever provides the maximum terms and conditions for employees.