Following a disciplinary procedure can be like sticking to a diet – you know it will work, but it’s a bit painful, and it seems ages before you have a result. Sticking with the process though, is worth it.
Dealing with employees who are not performing or who have behaved badly can be among the most challenging situations managers and HR personnel have to face.
Disciplinary procedures are the tool kit you need to manage these often difficult and emotional situations. When properly constructed, they set out a step-by-step plan for dealing with poor performance and employee misconduct.
Importantly, they help managers to maintain control, stay objective and deal with the situation effectively.
Procedures help to ensure that a disciplinary process is fair and that natural justice takes place. Employees must be provided with a proper opportunity to respond to criticisms and allegations. This is crucial if a disciplinary decision is to stand up to scrutiny in a tribunal or court.
If a business has a disciplinary procedure, it should be followed. However, the overarching principle of natural justice and the right to respond and be heard is paramount.
Your procedures will likely provide for this, but even where there is no procedure in place, employers must make sure that they follow this primary principle.
In a recent decision in the Queensland Industrial Relations Commission, Townsville City Council successfully defended an unfair dismissal claim made by a labourer who was dismissed after three separate incidents of temper-related misconduct.
The first two resulted in written warnings (including one final warning). The employee’s final mistake was punching the dashboard of a moving council vehicle from the back seat - because it was a hot day and he was angry that the front seat passenger had used the dashboard control to wind up the employee’s back seat window.
The Council had followed their disciplinary procedure with care on all three occasions with the employee.
The Commission upheld the Council’s decision to dismiss the employee, finding it was fair and reasonable. The Commission also noted that its own opinion about a disciplinary decision (if it had a different one) was irrelevant as long as the decision had been made fairly.
The employee’s CFMEU representative challenged not only the dismissal, but also the two previous warnings the employee had received.
Deputy President Kaufman was emphatic in saying that the circumstances concerning those warnings were not relevant to whether the dismissal was harsh, unjust or unreasonable; only the fact that two prior warnings had been issued was relevant. The dismissal viewed on its own and in the context of those prior warnings was justified.
Recently in South Australia, a team leader at a town library was found to have been unfairly dismissed even though his actions amounted to serious and wilful misconduct.
The fatal flaw in the employer’s process was that the time the employee had to provide a written response to the allegations was inadequate. This was sufficient to make the dismissal procedurally unfair.
The employee was dismissed for sending other employees text messages insulting management as being “narcissists and egotistical” and claiming management was “plotting (his) demise”. The employee was notified of the allegations, told to provide a written response and sacked (without notice) - all within 24 hours.
These actions were found to be deliberate and wilful misconduct and a breach of the employer’s social media policy.
However, impatience was the employer’s downfall. Commissioner McMahon held that even though the employee had not asked for more time, the 24-hour period was too short for the employee to properly respond to the allegations.
While these two decisions were made under state industrial legislation, similar principles apply when dealing with the discipline and processes leading to dismissal of employees covered by the Fair Work Act 2009 (Cth).
The golden rule is: know your disciplinary procedures before acting and keep natural justice front of mind. You can be sure that employees who are being disciplined, and their representatives, will be doing exactly that.
Procedures should be concise, clear and fair. Consider revamping your procedure if it is too complicated or no longer suits your business.
 McDowell v Townsville City Council  QIRC 163 (26 August 2015).
 Winship v Corporation of the Town of Walkerville  SAIRComm 9 (18 August 2015).
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.