“It’s all about the process: What to consider in the Disciplinary Process”

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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Comment by Bernard Keith Althofer on October 30, 2015 at 9:02

Some time ago I was made aware of a senior manager 'out to get' a manager who was allegedly bullying staff.  When called in for advice, it was apparent that the senior manager wanted the manager out - as in immediately.

I had to explain that from what I had been told, the allegations had not been investigated, the manager was fully aware of how the organisational processes were supposed to work, and that whilst I understood why the senior manager wanted the manager out, the approaches being planned would not stand up in a Court, Commission or Tribunal.

As it transpired, an investigation was conducted into the bullying allegations.  Advice was sought by the investigator about the key 'things' to look for.  It appeared that the investigator had not read the organisational policy and that the manager subject of the allegations was fully conversant with the policy, and to make matters worse, the interview was scheduled to be conducted within the hour.  Advice provided indicated that the interview should be rescheduled until the investigator had taken the time to read the policy, and even interview the complainant.

So whilst the intention was to terminate the employment of the manager, the actions taken would have resulted in an adverse finding had the investigation proceeded, or the employment terminated.

In terms of lessons to be learned, even when there may be a 'sound' reason to terminate employment, it is important to follow documented policies and procedures, even if they do seem to be time consuming.  It is also important to ensure that those managers and workers who have line responsibility for managing people, know and understand existing organisational policies and procedures that address IR and HR employment areas.

As a number of discussions appear to indicate in other forums, it is important to ensure that where policies and procedures exist in relation to the management of people, that managers and workers actually know of them, and understand the obligations and expectations contained therein.

Managers and supervisors are generallly at the forefront of maintaining organisational standards so it important for them to understand the potential implications that may befall them where they either make decisions that don't encapsulate procedural fairness, or they take short cuts because they have little to no understanding of the policy and procedures to be followed.

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