|
A.
INTRODUCTION
You have been told
you have to attend a meeting with the employer for disciplinary
reasons. What should you do? Well, the first thing is not to panic and
the second thing is not to resign. You may well have nothing to worry
about. However, you should obtain advice about your situation,
preferably before any meeting.
Action by an
employer against an employee which does not (at least immediately)
result in termination of employment falls into two general categories:
-
performance related
conduct; and
-
inappropriate
conduct or misconduct.
B.
PERFORMANCE
Prevention is
better than cure so it is a good idea to maintain an open line of
communication with your employer to ensure that you are continuing to
meet your employer’s continued expectations of you. This may
also help in resolving any simmering concerns
you may have about any aspect of your work. Performance management can
take several forms. In a highly structured system, formal performance
appraisals take place once or twice a year. Otherwise, there may be a
relatively informal meeting once each year or two with your supervisor
and in many workplaces, no system for performance appraisal exists at
all.
To minimise the
prospect of issues being raised about your performance, you should:
-
ensure you have a
detailed position description setting out your role and performance
requirements;
-
ensure the position
description is updated periodically to reflect any changes in your role
or the employer’s requirements;
-
ensure that you
understand an employer’s targets for you (particular
financial targets);
-
ask the employer
for regular feedback on your performance and suggestions for
improvement;
-
where possible, ask
for regular meetings to appraise how you are progressing; and
-
where possible,
obtain comments and other documents in writing.
Most performance
related disciplinary action has its roots in a lack of communication
and guidance. Often, an employee’s performance will not
improve unless the employer takes a proactive stance towards helping
the employee. Consequently, termination of employment is often an
inevitable outcome of the absence of any form of performance appraisal
or management, whether by the employee resigning or the employer
sacking the employee.
If an employer has
problems with your performance, they should at least meet with you to
tell you what parts of your job are being carried out poorly and what
you need to do to improve to the required standard and then give you a
decent opportunity to address the concern. This is called giving you a
“fair go all round”. This sort of interaction may
need to occur on several occasions before an employer is justified in
terminating your contract of employment. This is not the same as the
old “three written warnings” rule that was espoused
by trade unions.
Ultimately though,
if the employer is not satisfied with your standard of performance and
has made reasonable efforts to raise your performance, the employer may
be justified in terminating your employment, upon notice.
C.
MISCONDUCT
Misconduct can take
many forms from failing to lock a door properly through to fraud. If an
employer considers that you may have engaged in misconduct, then the employer has a duty
to investigate any allegations in a timely manner which may include
interviewing you to obtain your version of events. Sometimes, an
employer will investigate and subsequently call a meeting with you
where the allegations are put to you along with available evidence and
you are asked to respond.
Ideally, the
allegations and supporting evidence (including witness statements)
should be provided to you and you should be given a reasonable
opportunity to consider the material and provide a written response.
The extent of this requirement for procedural fairness (sometimes
called natural justice) will depend on the seriousness of the
particular allegations.
Often, employers
will deal with the matter by calling a meeting with you and putting the
allegations and a summary of the evidence and then asking you to
respond verbally in the meeting. This puts a great deal of pressure on
the employee and, particularly when more serious allegations are
concerned, is not an ideal forum.
You should always
have a support person at these meetings. If you are a member of a
union, then you should contact the union as soon as you are aware of
allegations against you and seek advice and support from your union.
Otherwise, you should obtain legal advice about your position and the
process which should be undertaken, as soon as possible.
In summary, if
conduct allegations are to be put to you, you should do your best to
ensure that:
-
the allegations are
detailed enough for you to appreciate what you are responding to;
-
evidence to support
the allegations is put to you such as summaries of witness statements
or, preferably, the full witness statements themselves;
-
you are given a
reasonable opportunity to obtain legal advice and consider the material
that has been put to you; and
-
you provide a
thorough response to the allegations (preferably in writing and
preferably with the benefit of advice from your union or lawyer).
The employer has a
duty to consider your response and, in the event that it finds the
allegations to be substantiated, to then consider what penalty should
be imposed. The employer should invite your further comments about any
proposed penalty, although this does not happen often.
D.
LEGAL OPTIONS
The reality is that
there is little you can do to force an employer to provide you with
full procedural fairness either in relation to performance or conduct
issues, at least if your employment is covered by federal employment
law. You or your representative can raise issues with the employer and
put forward what you say are the shortcomings in the procedural
fairness given to you. However, there are few legal options open to you
to attempt to resolve issues whilst remaining with your employer.
Prior to the Howard
government’s Work Choices amendments to the Workplace
Relations Act in 2006, disputes could be raised in the Australian
Industrial Relations Commission about these matters and an independent
Industrial Commissioner could assist in trying to resolve any dispute
between the employer and the employee, for instance in relation to
suspension or a failure to provide full procedural fairness. This
compulsory form of mediation was abolished by the Work Choices
legislation and replaced with a voluntary mediation process depending
on the agreement of both the employer and the employee. It is hardly
surprising that employers have not wished to voluntarily participate in
mediations in relation to things such as disciplinary action against an
employee. Employees covered by the state system of industrial relations
still have access to this compulsory form of dispute mediation.
It is also possible
for an employee to make complaint to the federal Workplace Ombudsman or
the Queensland Workplace Rights Ombudsman if you feel you have been
unfairly treated by an employer. However, the abilities of these
government agencies to address this situation is limited.
It is difficult to
challenge disciplinary decisions that fall short of termination of
employment, eg a warning, although there may be some scope for referral
of the matter to an independent mediator in your employment contract. If you do not agree
with a particular disciplinary decision which has been taken, you
should at the very least, put your concerns and reasons on paper and
ask the employer to place this letter on your personnel file and to
review the penalty imposed upon you.
.
|
