Details aligned to each step in the disciplinary/dismissal process are included below. The process for disciplinary and dismissal has the same steps, with a couple of variations. If you are unsure of the potential outcome, you are considering please get in contact with MyHR.
READ - Step 1: Collect the facts & gather evidence
READ - Step 2: Review the documents and get prepared
READ - Step 3: Notification Meeting
READ - Step 4: The employee’s consideration period
READ - Step 5: Employee Response Meeting
READ - Step 6: Your consideration period
READ - Step 7 :Outcome Meeting
READ - Performance Improvement Plan
READ - Disciplinary Process step-by-step guide
Step 1 - Collect the facts & gather evidence
A problem has come to your attention. Make sure that you have all the information and evidence that you need to establish that the employee has done something wrong. Unlike criminal law, the “balance of probabilities” test can be used, to establish if something is likely to have occurred.
Consider the following:
- Case law determines that you must act as a fair and reasonable employer could have acted, given the circumstances
- Consistency is key. Would you address this matter with all of your employees if someone else were to act or perform in the same way?
- Sense check yourself, is it fair to discipline an employee for this issue? Try and remain as objective as possible…..
- Are there any mitigating factors that may explain why this person might have behaved this way? i.e. pressures or issues in their personal life?
- Were witnesses present who could give their account? (Any witnesses must be prepared to be named in the process, if they are not prepared to go ‘on record then version or account of events cannot be considered in your decision making process)
- Is there CCTV footage?
- Timeliness of addressing the matter – anything older than 2 weeks and you may be too late, depending on the circumstances.
- Provide as much detail as possible
- Submit the request to MyHR, attaching all relevant information.
In some exceptional cases, suspension may need to be considered however there is a high threshold to justify such actions. We recommend you get in contact with MyHR to discuss further before suspending any employee.
Note: If the allegations relate to bullying or harassment of any kind, then a different process may follow, with the need to carry out a more thorough investigation process. Please talk to the team at MyHR for further information.
Once you have all of the required information submit a disciplinary request providing all of the relevant information.
Step 2 - Review the documents and get prepared
Make sure you are comfortable with the content. Practice your meeting script.
Review the notification support documents that MyHR have prepared for you, and make sure you are comfortable with the content. This is your process and your business, so you need to be able to support what is written down when questions are asked.
Prepare for the meeting by getting all the relevant documents together in a confidential file.
Check off the following to ensure you are prepared:
- Does the content accurately reflect the events?
- Does it include everything you wish to discuss with the employee? (If you later decide to introduce new information, or change the proposed outcome, then the consultation process starts again.)
- Does the proposed outcome align to your expectations? This includes options for recovery of money, alternative duties etc.
- Have you collated have all supporting evidence? E.g., CCTV footage, GPS data, statements from witnesses etc.
- Do you have another company representative arranged to attend with you?This is a good idea if the meeting is likely to get heated or confrontational, and should be another company director or somebody with formal management seniority.
Step 3 - Notification Meeting
Individual meeting with the employee
Reading the script (provided by MyHR), you outline the concerns you have about the employee’s performance, behaviour or conduct, then adjourn for their consideration period.
You do not need to provide notice of this meeting. Approach the affected employee in private or contact them by phone and ask them to attend a meeting with yourself and another company representative. It is important that they understand no response is required at this point.
Be prepared to allow them time after (or during) this meeting to compose themselves and prepare for the next stages. Make sure you have sufficient time in your schedule to allow for this to happen. Do not book another meeting straight after this one.
It’s preferable to meet with the employee face to face and they are presented with all relevant evidence including witness statements, CCTV footage and any other relevant evidence along with the letter. You should provide as much information upfront as possible to support your case. This can be supplied to them at the meeting, or you can send it to them immediately afterwards.
This meeting adjourns for their consideration period which should be a minimum of 2 working days, to allow the employee to prepare a response or seek adequate support or legal advice.
Step 4 - The employee’s consideration period
The employee reads the letter, considers your concerns, seeks advice and prepares a response. Allow 2 full working days minimum.
You are not required to do anything during this time other than make sure you are available if they have any clarifying questions or need to get in touch with you.
They may also request an extension during this time, even though they didn’t bring this up at the first meeting. Anything up to 2 weeks is considered reasonable, so don’t be surprised if your employee asks for more time. Agree to reschedule their response meeting if they ask.
If the employee submits their resignation during this period, do not accept this. Contact MyHR to provide an appropriate response. It is important to note that accepting a resignation from an employee in the middle of a disciplinary process may result in a constructive dismissal claim.
Step 5 - Employee Response Meeting
The employee’s response meeting
Follow the script, listen to their views, then adjourn to consider them before making a final decision.
This is the employees meeting and their opportunity to provide their response so you can carefully consider it before making a final decision. They should be doing most of the talking in this meeting. You need to record what they say in the notes section of the script and these notes should accurately reflect what was said at the meeting.
During the employee’s response, you may ask questions, clarify their responses, and challenge points that they make. This is not an interrogation, so don’t be a dick about it – just make sure that you are comfortable you have received a thorough response.
It might be necessary to challenge the points if they try to explain their actions in a manner you don’t necessarily agree with. For example: “I only turned up late to work because I was told to.”
If this is simply not true and you have a written roster demonstrating their start time, then you should challenge this response and seek further clarity from them.
For example: “Are you certain of this? When was this instruction given? Who gave it to you? What exactly were you told about the start time? Have you seen this written roster before? We may take a short break to confirm this with the manager.”
Step 6 - Your consideration period
Think about the employee’s response and factor this into your final decision.
The length of this adjournment should be at least 1 business day (in accordance with best practice), and potentially longer if required to ensure you can fairly investigate and review the employee’s response.
If the employee has provided a detailed response (possibly in writing), you may need to take several days to review and consider everything they have provided before making your final decision.
You may even need to look into matters further or ask further clarifying questions, if they have presented a lot of new information that you previously weren’t aware of. Don’t be afraid to take your time at this step, it is important you make an informed decision.
Before making a final decision ask yourself the following:
- Are your expectations clear and reasonable?
- Do you reasonably believe the employee intentionally committed the misconduct (do you feel that, when you consider everything, it is more likely than not that they did the action alleged)?
- Do the facts confirm your beliefs?
- Is the employee fully aware of the issues?
- Did the employee show regret or remorse and a genuine commitment to improve?
- Has the employee had a genuine opportunity to respond to all of the information you provided?
- Are there external or mitigating factors to take into account (eg workplace challenges, health or family issues etc)?
- Could there be any alternatives to your decision ie is a warning the only option?
- Did you take into account anything irrelevant?
- Are you treating this employee consistently with your other employees?
- What kind of precedent will this outcome set?
When you are ready, contact MyHR with the decision you have reached so they can prepare the relevant script and proceed to Step 7.
either
Step 7A - Outcome Meeting: No Warning
You decide not to proceed with a disciplinary/dismissal outcome
Communicate this decision to the employee and conclude the process.
Having carefully considered everything the employee has presented, you decide that a warning is not appropriate as they have provided you with a solid explanation and given you information you previously didn’t have. You decide that not issuing a warning is fairest.
MyHR will provide a letter for you to issue to the employee to confirm this outcome.
or
Step 7B - Outcome Meeting: Warning
You decide to proceed with a disciplinary outcome
Communicate this decision to the employee.
Outline the level of disciplinary, the performance improvement plan and future expectations of performance and/or conduct.
Having carefully considered everything the employee has presented, along with all the information that you started with, you determine that a warning needs to be issued.
The person has a legal right to know exactly what the warning is being issued for and why their behaviour or performance was not acceptable. Legally, you must also provide them with a clear and reasonable expectations for improvement, with support from the company to improve their behaviour or performance. This may include a performance improvement plan (PIP) to show you are serious about helping them improve and trying to get a positive outcome.
Or
Step 7C Outcome Meeting: Termination
You decide to proceed with a proposed dismissal outcome
Having carefully considered everything the employee has presented, along with all the information that you started with, you determine that the allegations have been upheld and therefore dismissal is the outcome you are considering.
As part of a robust process, it is recommended that a summary of your decision-making process is provided to the employee. This may include explaining why their explanation is not satisfactory, or if you have looked into matters further following their explanation what your findings have been.
i. Draft and send preliminary outcome letter (in some situations)
If this has been a complex issue or process and/or they have a lawyer or representative involved, then it is advised to draft a preliminary outcome letter proposing dismissal and the reasons why.
The employee will then have a further 2 working days to consider this and give their feedback.
The next step will then be the outcome meeting to hear their feedback and consider their response to the proposed dismissal.
ii. Hold Outcome Meeting
Before finalising the outcome, dismissal must be proposed, and the employee can provide a response as to whether or not they think the outcome is fair. Consider this response before making a final decision, if it changes your view you may decide to instead issue a warning, or you may proceed with dismissal either on notice, or not.
The dismissal outcome must be proposed to the employee and the employee must be given the opportunity to provide a response as to whether or not they think the outcome is fair. The adjournment for this response need only be 15 – 30 minutes.
If you decide to dismiss, communicate this outcome to the employee. Follow the script and contact MyHR with the employee’s response so that we can prepare a letter.
Dismissal will normally be either on notice (with worked notice or paid in lieu) or summary dismissal in which the employee should be escorted from the premises in a dignified way. If this is the case all of their company property should be collected immediately and final pay processed as soon as possible.
The employment relationship has ended.
A Word on Performance Improvement Plans
Return to work and support the employee to improve.
A performance improvement plan can be very simple. For example, if the warning was issued for repeated lateness, the plan may simply be to give them another written roster outlining the start times for their shifts and to suggest they buy a working alarm clock, or the company might buy one for them.
On the other hand, a performance improvement plan can be more complex. If the warning is for poor work performance, the plan may include some extra training and a weekly review meeting each week for 2 months to provide additional support and guidance.
If an employee does not have a PIP established after a warning, or the company does not follow through with managing and supporting the employee during the PIP, it will be very difficult to discipline or fire the employee for these problems in the future. This is because the company did not meet its legal requirements to provide support for the employee to improve.
Two things will then happen. Either:
Performance/behaviour improves
A positive result, the employee improves and after 12 months the warning is no longer valid.
This is a great outcome and the whole point of a disciplinary process.
The good person you thought you hired now performs/behaves in an acceptable way and you can all move forward. You do not have to continue with disciplinary or potential dismissal.
Hopefully you never need to do this with them again!
Performance/behaviour doesn’t improve
Undertake this process again, potentially to the next level of warning. If they’re already on a Final Warning, you may need to consider dismissal.
Despite your best efforts and support, after a warning, the employee does not improve. This new performance or behaviour issue could be directly related to a previous warning, or it may be a separate matter but equally unacceptable.
You therefore need to undertake the disciplinary process all over again, following the same steps. The outcome second time round might be a Final Written Warning. The same process applies.
Or, if they are already on a Final Written Warning, you may be considering dismissal on notice for continued poor performance or misconduct.