From time to time, issues arise with employees in workplaces that cause employers concern. These issues are many and varied but can include concerns about possible employee misconduct.
These events can trigger an employment process, involving an investigation and the need to meet with the employee. After an employment investigation is concluded, the employer may decide that further action is necessary. The employer needs to ensure that they act fairly and reasonably in dealing with the employee at the centre of the allegations or issues.
It is imperative that as part of a fair process the employee is fully informed of the allegations or concerns that have prompted the investigation, and 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.
The invitation to the disciplinary meeting should be in writing, clearly stating the purpose of the meeting, and setting out in detail the nature of the allegations or complaints that form the basis of the disciplinary meeting. The employer should specify how those allegations and concerns may justify disciplinary action, for example the allegation or issue may constitute serious misconduct or may be in breach of a specific term of the employment agreement. The letter should make the employee aware that the matter is serious, and the possible implications for the employee’s continued employment. The letter should specify if there is a risk that the matter could result in termination of employment. The employer should advise the employee that they are entitled to have representation or a support person present at the meeting.
During the 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 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.
Should any employer require assistance in relation to disciplinary matters or have any other employment law enquiries they should feel free to contact partner Michael Robinson (firstname.lastname@example.org ) or Catherine Pendleton (email@example.com)
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