Managing employee performance and conduct: the disciplinary process

12 April 2022

Managing poor performance or conduct requires an effective and careful disciplinary process to enable a business to consider all the relevant issues and determine an appropriate outcome.

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The Victorian Chamber’s workplace relations team regularly partners with businesses navigating this process. Through our consultancy services, businesses can feel confident they have a clear strategy, key documentation and valuable coaching and support to effectively manage the process.

The Workplace Relations Advice Line is open to take your call and help guide you through the disciplinary process and outcomes. In the meantime, here are five fundamentals to remember to ensure a fair and effective disciplinary process

#1: Do your homework

Before starting a disciplinary process, ask yourself: is a disciplinary outcome fair and necessary?

Check if there is a policy or enterprise agreement that sets out the steps to follow. Review the information and evidence available.

Regardless of whether you are dealing with a performance or conduct issue, do you have enough evidence? If you are dealing with a misconduct issue, you may need to investigate or make further enquiries to be satisfied the alleged conduct occurred.

If you are not the employee’s manager or supervisor, you will need to involve them in the process and discuss any issues to understand the circumstances and evidence.

Take time to consider your options before starting the disciplinary process. If there is no evidence and no admission, a disciplinary process may be ineffectual. Focus instead on proactive steps you can take to communicate behavioral or performance expectations.

If you are managing a conduct issue that may result in dismissal, assess the risk of the employee continuing to work. Do you need to take steps to protect others, the business or evidence? Is it reasonable and necessary to stand the employee down?

#2: Plan and prepare

If a disciplinary process is appropriate, take time to plan it.

Who will conduct the process? Will a notetaker be involved? When will you notify the employee that they are required to attend a disciplinary meeting? When will you hold the meeting? Will you hold the meeting in person, virtually, or by telephone? If a meeting isn’t appropriate, can you adapt the process to enable the employee to engage in writing?

There are lots of questions to ask, so work out the strategy early.

Examine any internal policies that may apply. For example, if your business has a disciplinary policy, what does it contain?

Your business may require certain approvals before a disciplinary outcome is confirmed. If that is the case, identify who can provide that approval or endorsement and ensure they are appropriately briefed, aware and available during the process.

Your preparation should involve drafting communications to the employee including inviting them to attend a disciplinary meeting. If you are contemplating dismissal as a possible outcome, or if it is a requirement under an enterprise agreement, remind the person of their rights to access a support person.

Another vital preparatory measure is to draft the questions you will ask. For example, if you are managing a conduct issue, does the person understand the applicable code of conduct, values or bullying policy? Explore their understanding before taking a closer look at the conduct itself.

It is vital you start the disciplinary process with an open mind. This means you must not predetermine the outcome. You must listen to all viewpoints, make appropriate enquiries and consider what disciplinary outcome – if any – is appropriate.

#3: Be confident

Investing time by gathering evidence and planning will safeguard you throughout the process. Every case will differ, and we often cannot predict how a person will respond to questions.

It is important to maintain control of the meeting and ensure you can gather all relevant information. This includes firmly putting the allegations to the employee and giving them an opportunity to respond.

Remember, you can pause the meeting at any time. You may need some time to have a quick chat internally, or you may need to adjourn the meeting to make further enquiries. If you need time, take it. It’s important you get it right.

To help maintain control and confidence, it is important to take time to prepare. The Victorian Chamber’s advisors and consultants have supported many businesses to ensure they feel prepared and can work through relevant questions and enquiries.

#4: Consider the issues carefully

To ensure a fair process you need to listen to the employee. If they present extenuating circumstances or mitigating factors you must consider them before settling on a disciplinary outcome. The time needed to decide will depend on the information provided.

Consider whether the employee accepts the case against them. Have they shown remorse and have they been open and honest throughout the process? Has the worker presented information that requires further enquiry? Are there medical issues or concerns that need to be investigated?

A disciplinary outcome could range from a warning (written, verbal, first and final) through to dismissal. You may decide you need the worker to complete a training program or be subject to coaching or supervision. It may be that, after listening to the worker, you decide a disciplinary outcome isn’t appropriate.

If you decide to dismiss or discipline an employee before taking into account the worker’s account of events, your process will be flawed. The worker may make an unfair dismissal claim and will likely be successful.

If dismissal is a possible outcome, it’s vital the worker is aware of this. They must be given a reasonable opportunity to ‘show cause’ as to why their employment should not be terminated. You will also need to give careful consideration and take advice on whether the conduct can be classified as ‘misconduct’ or ‘serious misconduct’.

Declaring ‘serious misconduct’ may render a dismissal unfair if correct process hasn’t been followed, even if the conduct is sufficient to establish a valid reason for dismissal.

#5: Be ready for curveballs

Not all disciplinary processes run smoothly or as planned. You need to prepare for curveballs and be ready to react.

Common issues can include:

  • the employee providing a medical certificate
  • the person being uncooperative or requesting extra time to accommodate their support person
  • the employee wanting a lawyer to attend or becoming emotional during the process.

Depending on the information contained in the medical certificate and the period the worker is deemed unfit to engage, you may need to pause the process. In some circumstances you may need to request more information or adapt the process. If the worker is uncooperative, it’s important you attempt to initiate contact and give them an opportunity to respond.

If an employee is requesting a support person, understand who is attending and what is causing the delay. If the delay is unreasonable, you may be able to push back and recommend the worker find an alternative.

Apart from an enterprise agreement entitlement or industrial instrument, the individual (such as a colleague, family member, friend, union representative or lawyer) is there to provide support. Be prepared to make it very clear that you need to hear from the employee. It can be helpful to ask the worker if they agree with the support person and that it will be taken to be their response when assessing an appropriate outcome.

Remember, if you are contemplating dismissal, take advice. You must have a valid reason for the dismissal and adopt a fair process. This involves considering all the circumstances, including the worker’s personal situation and the impact of the dismissal.

If an employee is dismissed, they may make a claim. Contact our experienced workplace relations advisors and consultants before starting the disciplinary process to ensure you understand the risks and make informed decisions.

If it is too late and a claim has landed, don’t panic. Get in touch – we can guide you through the process and provide the support you need.

In a related article, see how clear communication around a disciplinary process protected a business in an unfair dismissal case here.

How we can help

The Victorian Chamber Workplace Relations Advisors and Consultants, many of whom have held in-house roles and conducted complex disciplinary processes, as well as defended claims, are on hand to help. Get in touch via the Workplace Relations Advice Line on (03) 8662 5222.

If you are looking to upskill your managers and understand managing poor performance, conduct issues or workplace relations more broadly, visit the VCCI website to discover a range of short courses including:

  • managing termination, redundancy and unfair dismissal
  • performance management
  • employment law, a practical perspective
  • investigations in the workplace.

For assistance and support to help you manage poor performance or conduct issues, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

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