The Do’s

Act Promptly

If misconduct is alleged by the employer, then for the employee to be able to respond fairly to the allegation, the concern should be brought promptly to the employee’s attention. As an example, if the complaint is one of repeated late coming, then raising the issue two months after the incident does not allow an employee a fair opportunity to recall and provide an explanation.

We hear of many cases where an employee’s conduct or performance is unsatisfactory and has been repeatedly so. The situation has become frustrating.

When employers reach this point where it is no longer tolerable, they often want to dismiss the employee. It is important to act carefully. Without having issued prior warnings that the conduct or performance was unsatisfactory, and allowing the employee an opportunity to improve, dismissing an employee creates fertile ground for a personal grievance claim, other than when the situation is one of serious misconduct. Even with serious misconduct there is a process to follow.

Act Fairly

Ensure there is no disparity of treatment between employees.

Understand exactly what the issues are and check how the issue has been dealt with regarding any other employees. There may be a precedent.

Comply with Policies and Procedures

If you have policies and procedures regarding how disciplinary action will be investigated and conducted, ensure the steps you take will comply with those policies and procedures. And, check that the employee was given policy and procedure information when they joined your business.

Consult

An employee is entitled to understand the complaint, the documents and the evidence relating to the employer’s complaint, before he/she provides a response to, or explanation for, the conduct under the complaint.
Before any meeting, the employee should be advised that he/she may have a support person attend the meeting with them. It is up to the employee whether they choose to bring someone or not.

Consider and Investigate

An employee is entitled to a fair opportunity to provide his/her account of events in response to an employer’s concerns. The employee’s response may require the employer to undertake further investigations, such as talking to other staff about what they may have observed or speaking to external parties.

Consult Again

Once you have considered the employee’s response and determined that there has been misconduct or poor performance, then you will need to consult with the employee regarding the proposed penalty.

After receiving and considering the employee’s response, the employer can advise of its determination of the appropriate penalty.

If a warning is to be issued for poor performance, the employee should clearly understand the employer’s expectations regarding future performance and a date be set for further review of performance.