Effective disciplinary procedures are a valuable management tool in avoiding allegations of disparity in the treatment of employees and minimising the risk of an action for unlawful discrimination, constructive dismissal or procedurally unfair dismissal. Disciplinary rules, their status and the sanctions likely to be imposed, must be communicated to employees. In particular, it should be made clear whether the rules are merely operating instructions or whether a breach of those rules may result in disciplinary action against the transgressor.
It is important to distinguish between a disciplinary procedure (which should be non-contractual) and disciplinary rules as to, for example, what constitutes gross misconduct, which should be contractual.
Employees often bristle when disciplined, and sometimes they take their anger out by pursuing complaints against an employer. If you are in the position to discipline a worker, you need documentation of the actions you take in case of any conflict that could lead to a lawsuit. You also need to know what kind of documentation to keep.
In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:
- Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;
- Whether the person was notified of that reason; and
- Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
- Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
- If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and
- The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
- Any other matters FWA considers relevant.
Fresh HR Insights has developed a Disciplinary process that will guide you through the disciplinary process step by step as well as provide you with the templates, tips, and advice.
Contents: Introduction, Establishing the facts, Counselling, Disciplinary and vital end notes PLUS templates
Please note: The information in Fresh HR Insights Pty Ltd Disciplinary Process is not a replacement for Professional advice from experience Human Resource Consultant or Workplace Lawyer. If you have a complex situation, please seek further guidance. Call us on 1300 332 322
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