Disciplinary action and performance management

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:

  1. performance related conduct; and
  2. 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. 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 (particularly 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.

You are entitled to have a support person present at any formal meetings with your employer and you should consider providing any response to your employer in writing, as well as a verbal response to issues raised.

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

If you consider that action by an employer is unjustified, there are several avenues you may be able to pursue.

You should firstly look into whether your employer has a grievance policy and whether you can raise a grievance internally with the employer about the action which has been taken. If your employment is subject to an industrial award or enterprise agreement, there may also be avenues to raise disputes provided in those documents.

You can make complaint to the federal Fair Work Ombudsman (www.fairwork.gov.au) 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 not straightforward to bring a dispute about disciplinary action or performance management to the Fair Work Commission. It is necessary to consider what the motivation of the employer is in taking the action against you and whether there is any evidence beyond your mere belief. You may be able to make an application to Fair Work Commission if the employer is motivated by a ground which is prohibited under the Fair Work Act or in breach of your workplace rights. For instance, if the employer is taking action against you because you made a complaint to an outside authority, made a complaint or inquiry about your employment, because of a discriminatory attribute such as family responsibilities or a temporary absence from work due to illness or injury. This is not an exhaustive list and you should obtain legal advice as soon as possible about your options as time limits apply to making these types of applications.

In this situation, Fair Work Commission will convene a conference if both parties consent and can ultimately make a range of orders after a hearing process including injunctions and monetary amages.

It can be difficult to challenge disciplinary decisions that fall short of termination of employment. 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.