Disciplinary Procedures

The Employment Relations Act does not outline workplace disciplinary procedures, but the processes for solving workplace problems and personal grievances are relevant here. A staff member can counter an employer taking disciplinary action against them by taking a personal grievance. This means that the way disciplinary proceedings are conducted can be relevant when resolving employment relationship problems. Unresolved grievances following disciplinary action can end up in the Employment Court.

Two of the grounds for taking a personal grievance are unjustified dismissal and unjustifiable disadvantage. Taking disciplinary action involves disadvantage on the part of the employee concerned, and can lead to their dismissal. The law accepts that this is a legitimate action on the part of employers, but it requires that the action must be justified or justifiable in all cases.

The following conditions arise from this:

• The allegations being made must merit the severity of the action being taken.
• The process for dealing with the misconduct must be beyond reproach.
• It is necessary to document the process, and provide the employee with written explanations and warnings at various points along the way.
• The employer must be fair.

What is fair will depend on the circumstances and the nature of the misconduct. Dismissal for poor performance, for example, would require a much more elaborate process of warnings, consultation and investigation than dismissal for fraud. A fair procedure usually consists of:

• verbal warning
• written warning (maybe two)
• final written warning
• dismissal (on notice).

In following this process, employers need to be mindful of the following:

• Do the allegations justify disciplinary action?
• Have the reasons for the disciplinary action been fully investigated, documented, and explained?
• Has the employee been given reasonable opportunity to respond to the allegations and explain their side of the story?
• Have any matters raised by the employee that might cast a different light on the issue been fully investigated?
• Have the consequences of the warning been made clear to the employee?
• Have they been told clearly what is required of them and by when, to avoid any further action being taken?
• Has the employer offered the employee any assistance, such as additional training or mentoring?
• Has the employee been given adequate opportunity to seek assistance and advice from a union, lawyer, or other adviser?

There is an inherent power imbalance when an employer threatens an employee with disciplinary action. That imbalance can only be addressed by ensuring that the employee has had every reasonable opportunity to get independent advice. In collective employment agreements, it will almost certainly be a term of the agreement that the union must be advised of any disciplinary action being taken against employees who are subject to the agreement. For employees on individual employment agreements (IEAs) it will be very important to ensure they have had the opportunity to seek union, legal, or other assistance (and representation if they wish). This should always be documented.

The employment agreement is likely to set out how matters of discipline should be handled. If these procedures do not provide for a fair process and justified or justifiable action as provided by the Act, the employer will need to incorporate any additional actions that are needed to protect the interests of the employee.

In legal terms, there are two different kinds of fairness:

• Procedural fairness refers to the process that has been followed. Has the employee been given an adequate opportunity to respond to the allegations? Were they able to put their side of the story to a decision maker who considered it fully and without prejudgment?
• Substantive fairness refers to the substance of the allegations made and acted on. Have they been adequately investigated, and do they warrant the severity of the action being taken?

Disciplinary proceedings must be fair in both senses before they will be considered by the Employment Court to be legitimate.

You can have the best reason in the world to dismiss someone, but if your process is not fair and open, they will have grounds for a personal grievance.

You can use the best process in the world to dismiss someone, but if your reasons are inadequate, your action will be unjustified.