Employee Disciplinary Meetings

From time to time, an issue may arise with an employee in the workplace that causes employers concern. These issues are many and varied, but can include concerns about possible employee misconduct, involving an investigation and the need to meet with the employee. After an employment investigation is concluded, the employer may decide that further action is necessary. The employer needs to ensure that they act fairly and reasonably in dealing with the employee at the centre of the allegations or issues.

It is imperative that as part of a fair process the employee is fully informed:

a)    of the allegations or concerns that have prompted the investigation; and
b)     that the employer has assessed that the situation requires further action.

The employee should have a real opportunity to consider and respond to the allegations or complaints. The employer should invite the employee to attend a meeting to enable the employee to provide their explanation or response (‘Disciplinary Meeting’).

There are a number of requirements that should be met and addressed in the invitation to the Disciplinary Meeting.

1. It must be in writing.
2. It should clearly state the purpose of the meeting, and set out in detail the nature of the allegations or complaints that form the basis of the Disciplinary Meeting.
3. Details should be given as to how the allegations and concerns may justify disciplinary action. For example, the allegation or issue may constitute serious misconduct or may be in breach of a specific term of the employment agreement.
4. The letter should make the employee aware that the matter is serious, and should set out the possible implications for the employee’s continued employment.
5. It should specify if there is a risk that the matter could result in termination of employment.
6. The employee should be advised that they are entitled to have representation or a support person present at the Disciplinary Meeting.

During the Disciplinary Meeting, the employer should work through the details of the allegations or issues with the employee, carefully obtaining the employee’s responses or explanations. The employer should keep detailed notes of the Disciplinary Meeting, to enable the employer to demonstrate a fair and reasonable approach if the employer’s process comes under scrutiny at a later date. The employee may refuse to attend the meeting, or attend the meeting and not respond. If this is the case, the employer should make the employee aware that, if the employee chooses not to participate in the process, the employer will have to make a decision based on information gathered during the investigation. A reasonable amount of time should be set aside for the Disciplinary Meeting.

The employer must not predetermine the outcome of the disciplinary process before meeting with the employee. The employer must genuinely consider the employee’s responses with an open mind. If the employee points to other information by way of explanation or response, the employer may need to undertake further enquiries or investigation before making a decision.

Any decision made by the employer following the Disciplinary Meeting must be what a fair and reasonable employer could have done in all the circumstances. The obligation is on the employer to justify any action or decision they make that affects the employee’s employment.

Taking a fair, open and reasonable approach to the Disciplinary Meeting will enhance the employer’s disciplinary process, and will assist in ensuring the disciplinary process is sound and any resultant decision is reasonable.