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Disciplinary action does not have to lead to disputes

Posted by | August 7, 2015 | Workplace

Via LinkedIn : Disciplining an employee can often be a daunting prospect for an employer, particularly if it leads to a dismissal. It’s an area prone to misconception and misunderstanding.

While the Fair Work Act 2009 makes no mention of an appropriate disciplinary procedure, it does identify certain factors that are taken into consideration if the Fair Work Commission have to investigate a claim.

So what are regarded as reasonable criteria for a workplace disciplinary procedure, and as an employer, how can you protect your business from claims of unfair dismissal?

Here are five factors to take into consideration:

1. Size does matter

The size of your business plays a pivotal role in how the Fair Work Commission determine a claim.

If you are a small business with 15 or less employees (including casual employees hired on a regular and systematic basis) you must comply with the Small Business Fair Dismissal Code. This code provides different rules for a dismissal and protection against claims provided you can show evidence of adhering to it.

2. Provide procedural fairness

A well-developed disciplinary procedure should provide for natural justice, otherwise known as procedural fairness. A ‘fair’ procedure includes informing the employee of the allegations regarding their conduct or performance and providing them with an opportunity to respond. This applies even when the employee has allegedly engaged in serious misconduct.

Despite the common misconception of ‘three warnings and then they are out’, under Australian legislation employers are not required to issue a certain number of warnings. Rather, they must afford the employee with a reasonable chance to rectify the issue before they are dismissed. This may mean providing an adequate amount of time for improvement, or in certain cases, providing counselling and/or training.

Any decision to dismiss an employee should be ideally made on multiple sources of corroborating evidence and not due to any bias or personal interest.

3. Document the evidence

Detailed documentation is essential when it comes to refuting any allegations that the disciplinary process was unfair or biased.

Put all warnings in writing and document any meetings regarding performance and conduct, as this may become evidence in the future. Provide the employee with a copy of the documentation and use this as an opportunity to clarify any confusion with them.

4. Performance versus conduct

A well-defined disciplinary procedure will recognise that issues related to conduct may involve very different considerations and outcomes to those related to performance and capability.

In the case of underperformance, employers should be assessing whether they have done everything reasonably within their control to assist the employee to meet the organisation’s expectations. However, issues of misconduct require a different approach altogether.

5. Follow the procedure

Even the best disciplinary procedure won’t be able to protect your business if no one follows it, so make sure all of your policies and procedures are communicated and implemented throughout the workplace.

It is up to the employer to ensure that staff understand the disciplinary procedure, so make sure employees sign off on a document acknowledging that they are aware and understand it completely.

An effective and transparent disciplinary procedure is a valuable tool in minimising potential claims of unfair dismissal and discrimination, as it provides consistency in decision making and creates a fair and professional culture.

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