Are you getting employee discipline & termination right?

The discipline or termination of an employee is never easy. It’s important that your termination procedure is compliant with Australia’s unfair dismissal laws and is based on an understanding of your employee’s rights. If you have employees you should have comprehensive policies and procedures in place to educate employees on the expected standards of behaviour and how you will approach any disciplinary actions relating to a breach of those standards. I’ve written about the importance of workplace HR Policies here and here.

Under Australia’s workplace laws there are some keys steps that must be followed for a termination to be lawful, the big one is whether the action taken meets the principles of “procedural fairness” or “natural justice”. This means the employee has been made aware of the allegations concerning their conduct and are given the right to defend the allegations put to them, this implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. An example of this is walking into a disciplinary meeting with a pre-written letter of termination or warning in your notebook ready to pass across the table to the employee once you have put the allegations to them.

More and more with unfair dismissal cases Fair Work is looking at the process the employer followed as opposed to the conduct of the employee, it pays to have good policies & procedures in place and more importantly, to follow them. Particularly with breaches of policy such as WHS and Medication, Drugs & Alcohol the Commission is going to want to see evidence that the employee;

• knew what was required of them
• knew a breach of the safety requirement / policy could result in dismissal
• An adequate investigation took place
• was given a fair opportunity to respond to the allegation
• failed to give an adequate response to the allegation

In regards to breaches of Medication, Drugs & Alcohol policies employers must verify a breach has occurred, this requires the sample to be sent for GCMS testing to confirm the presence of illicit substances in excess of the Australian Standards, a positive at the cup is not a verified positive result.

Best Practice

• Failure to warn employees that their conduct may lead to their dismissal is usually considered a major employer omission by the Commission. This means there should be a ‘paper trail’ which documents the relevant incidents leading up to a dismissal.
• Proper documentation is essential. It is advisable to have the employee sign the notes of any discussions relating to performance, although the employee is not legally obliged to do so. The employee should be given the opportunity to have a support person present, chosen by the employee.
• The employee must be informed about all problems, be given an opportunity to respond, and allowed a reasonable period of time to remedy them.
• In regards to written warnings the employee should be told this is the first warning in a process which may end in termination.
• Under unfair dismissal laws, there is no statutory period of time in which a warning (verbal or written) remains valid.
• The period a warning remains enforceable will depend on a number of factors, including the seriousness of the problem and the nature of the offence.
• Between three and eight months is usually appropriate, but will obviously vary depending on the circumstances, such as how often the criteria for satisfactory performance can be applied to an employee.
• A ‘shelf life’ of a year or longer for a written warning would be considered extreme in most cases before a tribunal.

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