Disciplinary Proceedings
Lawyers & Barristers

A disciplinary procedure normally takes the form of a hearing of some sort, between employee and employer, in relation to either the underperformance or apparent serious misconduct of the employee. These hearings range from very informal, such as a meeting between employee and employer, through to very formal settings such as within court.

Underperformance is when an employee is not doing their job correctly or is behaving in an unacceptable way at work. This may include:

• Not carrying out their work to the required or not doing their job at all;
• Not following workplace policies, rules or procedures;
• Unacceptable behaviour at work, e.g. telling inappropriate jokes;
• Disruptive or negative behaviour at work, e.g. constantly speaking negatively about the company.

Serious misconduct is when an employee causes serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business. It also includes an employee deliberately behaving in a way that’s inconsistent with continuing their employment. Examples of serious misconduct include:

• Theft;
• Fraud;
• Assault;
• Being drunk at work;
• Refusing to carry out work duties.

If the underperformance or conduct issues are of a serious enough nature the employer may wish to summarily dismiss the employee. They must comply with any rules and regulations they have in place or have to comply with in order to do this. If they do not the employee may have a claim for unfair dismissal.

Underperformance or conduct issues deemed serious enough allow the employer to dismiss the employee. Failure to comply with rules and regulations may see the employer faced with a potential claim for unfair dismissal.

Normally, a private warning meeting between employee and employer should be arranged to discuss apparent underperformance or misconduct issues. There is, however, no requirement to do this.

Whilst not formally required, a private meeting should be arranged between the employer and employee to discuss any apparent underperformance or misconduct issues.

If the employee’s performance has not improved or the employer believes the employee’s actions are so serious, potentially being serious misconduct, then they may wish to terminate their employment immediately.

A warning letter allows the employee to potentially address their underperformance or misconduct.

A warning letter should always follow a warning meeting. Again, there is no requirement to do so.

The next step for an employer, following the meeting would be to provide the employee with a warning letter. This is not a formal requirement for employers however.

A warning letter should include:

• Record who was present at a warning meeting if one occurred
• Record the fact the employee was invited to have a support person present – if they did not avail themselves to this opportunity
• Outline relevant policy or employment contract is applicable
• Details of your performance or the conduct of concern
• What was previously discussed with you about the issue
• Detail any previous warnings that were issued
• What the employer can do to assist you
• Outline any support, such as further training, that the employee can access
• What steps you need to take
• A reasonable timeframe in which changes or improvements need to occur
• Be countersigned by the employee to show evidence of receipt of the warning

If you have been dismissed without your employer undertaking the relevant disciplinary proceedings you should consult a lawyer about unfair dismissal.

Generally there is no legal requirement requiring a set number of warnings prior to termination. There is only a requirement if the business is a ‘Small Business’ which is defined as having less than 15 employees. A Small Business requires one written or one verbal warning prior to dismissal, except in matters warranting summary termination. If, however, the employee ends up lodging an unfair dismissal claim the amount of warning given will be something that the Fair Work Commission will take into account when determining if the dismissal was unfair. It is therefore in the employer’s best interest to make warnings as clear and numerous as practically possible.

Small businesses with less than 15 employees are required to provide one written or verbal warning prior to dismissal, except in matters of a serious nature. To avoid potential liability for unfair dismissal, it is best practice for employers to provide clear warnings. During unfair dismissal proceedings the Fair Work Commission will consider the amount of warning provided to the employee.

There is an informal, unspoken rule that an employer should strive to use anything from one to three written warnings prior to termination. By providing at least two written warnings, it provides the employer with a strong position to act decisively if conduct continues, or the performance does not improve.

It is recommended that employers provide at least two written warnings.

Overriding these informal rules may be internal policies of the business if they have formalised their own performance management procedures into policy. If they have done this they must comply with these policies or a case of unfair dismissal may be appropriate.

If you have been unfairly dismissed after a series of warnings, or none at all you may have a claim for unfair dismissal.

You may instead wish to investigate whether your business has any internal procedures for lodging any grievances you have with how you have been treated as an employee. Many business have internal procedures in place to facilitate this process. If they do not exist in your workplace, you may wish to engage legal advice for other avenues of assistance.

The first step would be to investigate whether your business has any internal procedures in regards to lodging any grievances for unfair treatment. The next step would be to seek legal advice in relation to the matter.

You can make a complaint to the federal Fair Work Ombudsman if you feel that through a disciplinary hearing or a warning you have been unfairly treated by your employer. This avenue may be particularly limited however. It is necessary to consider what the motivation of the employer is in taking the action against you and whether there is any evidence beyond your mere belief. Some examples of motivations of the company that would fall within an eligible complaint to the Fair Work Ombudsman are:

• Taking disciplinary action against you because you made a complaint to an outside authority;
• Taking disciplinary action against you made a complaint or inquiry about your employment;
• Taking disciplinary action due to a discriminatory attribute such as family responsibilities or a temporary absence from work due to illness or injury.

The above is not an exhaustive list and proper legal advice may be necessary to determine whether your circumstances would enable the Fair Work Ombudsman to undertake your complaint.

If the Fair Work Ombudsman does take up your complaint the Fair Work Commission will convene a conference if both parties consent and can ultimately make a range of orders after a hearing process. These orders may include injunctions or monetary awards.

Without being dismissed as a result of disciplinary procedures it can be difficult to challenge the disciplinary decision if you disagree with it. It is, however, wise to at the very least make your concerns known to the employer either through their grievance procedures or to simply make a file note of your concerns for your employer to put in your personnel file, asking to review any penalty imposed on you.