workplace disciplinary procedure - Fair Work Act (s387) - harshness

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

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 rectify 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.

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