How to run a disciplinary process

A disciplinary process should be used to address concerns relating to an employee’s continued poor performance or misconduct.

Step 1 - Investigate the matter

Investigate what has occurred to establish the facts and determine whether misconduct or poor performance has occurred. This may include interviewing witnesses, reviewing CCTV footage, reviewing emails, reviewing performance data, etc.

Step 2 - Submit the request in MyHR

Include as much information as possible on the matter, including what occurred, when it occurred, how the employee knows that the conduct or performance is unacceptable, previous warnings and what outcome you are considering.

Step 3 - Notify the employee of allegations and invite them to a meeting

Provide the employee with the Notification of Disciplinary meeting letter, which summarises the allegations and invites them to the disciplinary meeting
The employee should be provided with 24-48 hours' notice of the disciplinary meeting occurring.

Step 4 - Conduct the meeting

Present the allegations and supporting information and invite a response from the employee.

Consider the employee’s response and ask any necessary questions to better understand the employee’s response and their understanding of the allegations and expected conduct/performance.

Once the employee has provided their response and you have asked pertinent questions, invite the employee to put any other matters for that they believe to be relevant.

Take note of the employee’s response to the allegations and provide the employee with a copy of the response meeting minutes.

Step 5 - Consider all information and determine a reasonable outcome

Take time to consider or further investigate the employee’s responses before deciding on the balance of probabilities if the allegations are substantiated.

Consider the employee’s disciplinary history, any extenuating circumstances put forward, the nature of the misconduct/poor performance, the employee’s tenure, and anything else that is relevant.

If considering termination, consider risks such as unfair dismissal, and ensure that the dismissal would not be considered harsh, unjust or unreasonable, in accordance with Section 387 of the Fair Work Act. Generally speaking, when considering whether a dismissal was unfair, regard should be had to whether there was a valid reason for the dismissal and whether the employee was awarded procedural fairness. You may need to consider other legal risks.
If you're considering summary dismissal, consider whether the issue meets the threshold of serious misconduct, i.e. does it involve the employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, sexual harassment or refusing to carry out a lawful and reasonable instruction that is part of the job.

Step 6 - Meet with the employee to notify them of the outcome

Meet with the employee and advise them of the outcome, which may include disciplinary action against the employee. Disciplinary action may include a warning, final warning or even termination. Provide the employee with a letter confirming this outcome. The outcome may also include no action being taken against the employee.

Step 6(a) - Outcome: Warning

Provide the employee with the warning letter drafted by MyHR. Advise the employee of the conduct/performance expectations going forward and the implications of any future misconduct or poor performance.

In addition, confirm details of any training or performance improvement plan that will be implemented, if relevant.

Step 6(b) - Outcome: Termination

Confirm relevant details, such as the last day of their employment, the amount of notice that applies, whether they will be paid in lieu of notice, details around returning company property and the employee’s final pay.