What is disciplinary action?
Action by an employer against an employee which does not (at least immediately) result in termination of employment falls into two general categories:
- performance related conduct; and inappropriate conduct or misconduct.
- Disciplinary procedures due to poor performance, inappropriate conduct or misconduct in the workplace require diplomacy, discretion and due process.
It is imperative businesses have their performance plans and disciplinary procedures in place so there is no question as to what is expected of staff and what will happen if they don’t meet required standards, behave inappropriately or engage in serious misconduct.
Employees need to be aware of their rights in the workplace to ensure they are not being bullied, discriminated against or unfairly treated.
The team at Fourtree Lawyers knows that being called into a disciplinary meeting for underperforming, inappropriate conduct or serious misconduct can be a daunting process. We understand your job is important to you and we can help you minimise the risk of being dismissed, suspended or demoted. By keeping a cool head, understanding your rights and seeking good legal advice you can minimise these risks.
Tips to deal with being called into a disciplinary meeting
- Get advice from a lawyer or a union official
- Before the meeting ask for copies of any allegations against you in writing
- Find a support person or union representative to attend the meeting
- Document everything that is said in the meeting
- Ask that the meeting is not recorded via video or audio.
- Do not buckle to the pressure to resign or be demoted
- Make sure you understand the questions and don’t answer anything you are unsure of
- Do not admit to anything if accused of serious misconduct as information provided may be passed on to the police.
How can I minimise the risk of being seen to be underperforming?
Minimise the risk of being seen to be underperforming by communicating openly with your managers, asking for feedback and taking note at performance appraisals.
- Have a detailed job description and understand performance targets
- Ask for feedback
- Ask for regular appraisals and keep documentation pertaining to this.
Can I be dismissed on the spot for underperforming?
An employer should follow certain procedures regarding disciplinary matters. They must make you aware of the problem, provide counselling and extra training and give you time to improve. If the situation doesn’t improve and you are still underperforming, they have grounds to dismiss or demote you.
Can I be sacked on the spot for serious misconduct?
For serious misconduct allegations such as fraud, assault or theft, your employee should thoroughly investigate the claims being made against you. You should be given opportunity to respond to allegations and evidence procured. You could be suspended from work, usually with pay, while these proceedings take place.
If you are called to a meeting to answer serious misconduct allegations seek advice from the team at Fourtree Lawyers.
What happens if I am demoted, suspended or dismissed for underperforming, inappropriate conduct or serious misconduct?
It is advisable to seek legal advice. The team at Fourtree Lawyers will explore every legal avenue available to you to determine if you can challenge any of the above outcomes or are entitled to make a claim for damages or losses incurred.
Managing an employee who is unable or unwilling to do their job, whether it is due to personal factors, being out of their depth or simply having a bad attitude towards work, or who has engaged in serious misconduct, is a common problem in the workplace.
And it is one of the most challenging and risky aspects of running a business.
If it is not managed properly a difficult employee could make a claim for damages against your business.
Fourtree Lawyers can help you manage your employees by:
- Drafting performance plans and policies;
- Drafting disciplinary procedures; and
- Providing advice in dealing with poor performance and misconduct
- Providing advice on disciplinary measures, demotion and terminations
Do I need to give an employee a warning in writing before terminating their employment?
It is considered best practise to let your employees know they are underperforming and give them the opportunity to improve before dismissing them. Warnings need to be clear, provide clear expectations and be fair and reasonable.
By failing to give a warning and a chance to improve, your employee could make an unfair dismissal claim to the Fair Work Commission.
The experienced staff at Fourtree Lawyers provides expert advice on warnings and terminating staff which will reduce the risk of a claim being made against your business.
Can I dismiss an employee for breaking company rules?
Yes, but only if you have made the employee aware of the rules. Clearly drafted and concise company policies should be made available to all staff.
Why do I need a performance plan?
A performance plan should be made clear to an employee at the start of a new role. It’s an opportunity to ascertain:
- what they are going to do
- how they are going to do it
- knowledge and skills needed for the job
- performance reviews
This provides a template for assessing an employees’ performance.
Why do I need a performance policy?
A performance policy is important, so everyone is on the same page. It will outline what will happen if an employee is underperforming. It should include the number of written and verbal warnings that will be issued to a worker before being dismissed.
Why do I need disciplinary procedures?
It is important to have clear and concise disciplinary procedures in place to reduce the risk of legal proceedings which could include damages for unfair dismissal or discrimination in the workplace.
What are disciplinary procedures?
All staff should be familiar with disciplinary procedures and understand the steps involved including:
- Initiating a meeting to warn an employee of concerns and giving them an opportunity to improve
- Counselling so that employees understand what is required and are given guidance to improve
- Keeping records of discussions at counselling sessions
- Providing further training to get them up to speed
- Keeping records of measures taken to deal with problems such as counselling, further training and poor performance
- Information about how many warnings will be issued before an underperformer is dismissed
- Providing employees with the right to a union representative, support person or witness
- Making employees aware that instant dismissal will be applied for serious and wilful misconduct
What happens if performance doesn’t improve after a disciplinary meeting?
If your employee’s performance doesn’t improve you can:
- Initiate another meeting
- Change the employee’s duties
- Provide additional training
- Terminate employment
For terminations, businesses need to make sure their workers are not being unfairly dismissed and are given termination notice and their final pay.
Fourtree Lawyers provides expert advice in managing disciplinary issues and terminations.
How can I prevent underperformance?
Clear communication is key to managing performance and includes listing expectations in your job description, addressing issues as soon as they arise, holding regular performance reviews and encouraging employees to communicate concerns with their managers.
We are here to help
Our solicitors specialise in Employment Law and represent clients throughout the Hunter, Newcastle, Sydney and across the Central Coast. We have the experience to guide you through often complex workplace issues from beginning to end to ensure you get you the best possible outcome.
If you have a workplace issue or dispute, call one of our Employment law specialists on 1300 529 444 or submit a contact form to arrange a case assessment with one of our solicitors today.
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