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What to consider in the disciplinary process

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It’s all about the process

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc) to overlook or shortcut the disciplinary process and to proceed directly to the termination of an employee’s employment. This failure to commence formal disciplinary procedures may expose employers to liability where the employee claims that he/she was denied procedural fairness.

As highlighted previously in our “Todd Carney” blog series: The importance of procedural fairness – “it’s all about the process and Off the clock – employer interest in employee’s out of work conduct the main argument raised by Carney in his sacking from the Cronulla Sharks was that he was denied procedural fairness prior to his termination.

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc), to overlook or shortcut the disciplinary process and to proceed directly to the termination of an employee’s employment. This failure to commence formal disciplinary procedures may expose employers to liability where the employee claims that he/she was denied procedural fairness.

When contemplating starting a disciplinary process, employers should first check any disciplinary procedure in place. A procedure is often outlined in an adopted policy or in the employee handbook or in the applicable industrial instrument. These documents may dictate how and when allegations are to be put to the employee. This step is important as failure to comply with a required disciplinary procedure could compromise the integrity of the rest of the process.

In Carney’s circumstances, the Collective Bargaining Agreement applicable to the employment provided that a “breach notice” setting out the allegations is to be issued to a player who can then appear before a Club Board to provide explanations or responses.

Before getting to a point of putting allegations to employees – employers may need to check they have sufficient particulars of the allegations upon which to proceed. Where details are sketchy, employers should consider whether an investigation needs to be carried out before the disciplinary process begins. Where there is an investigation carried out, it is important for the investigation to be completed before any disciplinary process is commenced.

Other things for employers to consider before making a decision about the disciplinary penalty to be imposed include, for example:

  • The employee’s responses to or explanations for the situation;
  • The nature and extent of the situation;
  • The employee’s length of service and history of employment.

In unfair dismissal proceedings there are procedural aspects that the Fair Work Commission will consider to determine if a dismissal was “harsh, unjust or unreasonable” including:

  • Whether there was valid reason for the dismissal;
  • Whether the employee was advised of the valid reason and provided with an opportunity to respond / explain;
  • Whether the employee was unreasonably refused a support person;
  • Whether the employee was dismissed due to unsatisfactory performance, whether the employee was previously given an warning; and
  • Any other matters considered relevant.

A decision to terminate an employee’s employment can certain be found to be unfair (harsh, unjust or unreasonable”) where procedurally a step has been skipped in the disciplinary process (e.g. failure to provide an opportunity to respond to allegations) or where the investigation process and disciplinary process is flawed.

“Procedural fairness” has long been a significant part of the requirements governing termination of employment in Australia and this principle looks to be tested again in the upcoming Carney litigation.

 

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