Workplace disciplinary procedure that is risk free for Small Busineses

What Is the Definition of a Disciplinary Action?

Disciplinary action is a reprimand or corrective action in response to employee misconduct, rule violation, or poor performance. Depending on the severity of the case, a disciplinary action can take different forms, including:

  • A verbal warning
  • A written warning
  • A poor performance review or evaluation
  • A performance improvement plan
  •  A reduction in rank or pay
  • Termination

Employers are sometimes confronted with having to discipline employees ‚ possibly leading to dismissal ‚ over a range of matters. What is regarded as reasonable criteria for a workplace disciplinary procedure? This question was sent to Workplace Info’s editorial team in 2013.

QUESTION: We are currently reviewing our company policies and procedures. Our counselling/disciplinary procedure currently refers to an employee receiving a verbal warning initially, then three written warnings, then possible dismissal. While the Fair Work Act 2009 identifies factors that Fair Work Australia (FWA) takes into account when determining the harshness, etc, of a dismissal, it makes no mention of an appropriate disciplinary procedure.

Because our company employs more than 100 employees, we are not subject to the Small Business Fair Dismissal Code. Is there a counselling/disciplinary process that could be regarded as ‚ ‘fair’ when defending an unfair dismissal application before FWA?

ANSWER: The Fair Work Act (s387) provides the criteria for considering harshness, etc, which FWA must take into account when determining an unfair dismissal application. These criteria are:

  • whether there was a valid reason for the termination related to the employee’s capacity or conduct
  • whether the employee was notified of that reason
  • any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal
  • if the termination related to unsatisfactory performance by the employee, whether the employee had been warned about that unsatisfactory behaviour before termination (disciplinary procedure)
  • the degree to which the size of the employer’s business would be likely to impact on the procedures followed in effecting the termination
  • the degree to which the absence of dedicated HR personnel would be likely to impact on the procedures followed in effecting the termination
  • any other matters that FWA considers relevant. Reasonable . . .

The company’s current disciplinary procedure would appear adequate on the issue of ‚ ≤procedural fairness’, although an employee must be given a reasonable chance to rectifying the problem before a subsequent warning is issued, which may involve counselling the employee or providing additional training.

Warnings While a warning plays a critical role in the context of the fairness, or otherwise, of an employee’s dismissal, other important matters may need to be applied in addition to an appropriate warning procedure. The disciplinary procedure is not unbreakable in that certain types of misconduct could alter the procedure by issuing (say) a final written warning to the employee. However, in the normal course of events, failure to warn an employee that their conduct or behaviour may lead to dismissal would be considered a major omission by FWA.

There are certain instances that should always result in disciplinary action because of the egregious nature of the misconduct. These include:

  • Threats or acts of violence, especially if against employees or customers
  • Sexual harassment or assault, especially in the workplace
  • Fraud, including unauthorized use and misappropriation of funds
  • Theft
  • Discrimination

It is always recommended that an investigation is carried out prior to any action being taken. A workplace investigation is a process of fact-finding. An investigation should commence as soon as possible after you become aware of a serious conflict or allegation of misconduct in your workplace. Why? because ultimately, engaging in timely and effective workplace investigations will save your business time and money. Workplace investigations may be subject to challenge. It is therefore important that you establish a process for investigating conflicts and allegations that is rigorous and procedurally fair.

Need more help with either a workplace investigation or alternatively a disciplianry process? Fresh HR Insights can assist you with your specific people management issues and problems. Contact us today to book yourself in on 0452471960 or paulette@freshhrinsights.com.au