making sure the disciplinary process is fair

A fair and transparent process not only avoids legal action later on, it should also be at the core of any disciplinary procedure. There should be clear steps for each stage of the process, with disciplinary actions stated for certain types of behaviour or performance, and the employee is given a chance to respond.

an example of a disciplinary procedure:

step 1 – employees who are underperforming should be counselled so they understand the standards expected of them, and offered assistance and guidance in achieving the expected standards. They are given a specified period of time to improve, usually one month, so progress can be checked and measured against agreed performance indicators.

step 2 – confidential records of any counselling undertaken must be noted and kept. The employee will be shown and given a copy of the written record and will have an opportunity to comment on its contents. This can be done either in writing or orally. The record will only be placed on the employee’s personal file when the employee has been given the opportunity of responding to the record, and adding any notations regarding the contents of the record.

step 3 – if at the end of this period the employee has not improved and shows no willingness to improve, a final written warning is issued to the employee. This usually states that if there is no immediate improvement, further disciplinary action, including dismissal, may be taken.  

step 4 – the employer also has the right to summarily dismiss an employee for serious and wilful misconduct.

step 5 – at every stage of the disciplinary process, the employee has the right to have another employee or union representative present as a witness.

number of warnings?

It is considered best practice to issue three warnings, but an employer can issue just one warning, as long as it gives the employee a chance to improve. All employees should be made aware of the number of warnings within the disciplinary process, and that a final warning will lead to action. 

before deciding on disciplinary action

When deciding on the most appropriate form of disciplinary action, the following issues should be considered:

  • whether the disciplinary procedure indicates what the likely penalty for certain behaviour will be, e.g. are there examples of what constitutes gross misconduct stated in the company procedure?
  • what have the penalties been in the past for the same offence?
  • are there any mitigating circumstances which might lessen the penalty?
  • what is the employee’s current disciplinary record, length of service and position within the company?
  • is the penalty to be imposed reasonable in view of all the circumstances?

Although past company rulings and disciplinary procedures will provide guidance on what penalty should be issued, each case should be considered on its own merits as there may be special circumstances which will influence the decision.

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