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.
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.