Disciplinary issues can be complex, with employers often unsure how to respond while staying compliant with workplace laws.
Here, our experts answer common questions on disciplinary action that come through our Employee Relations Helpline.
As a CCIWA Member, you get unlimited access to our Employee Relations Helpline. We are here to help you manage your employment relations needs. This includes prompt advice on your circumstances and up-to-date industrial relations information. Contact us on 08 9365 7660 or via [email protected].
Q: What disciplinary action can I take for an employee commencing work late?
A: It’s important for an employer to establish start and finish times in line with an employee’s contract at commencement of employment. If there are reliability concerns where an employee is failing to attend work at their designated start time, an employer may start a disciplinary process.
Employers should first have a conversation with employees to inform them of the expected start time and understand if there were any reasonable explanations for arriving late. If the employee continues to arrive late without a valid explanation, the next step may be to start a disciplinary process. Employers should allow the employee to provide a response, consider any mitigating circumstances put forward by the employee, and ensure they are following a procedurally fair process.
Related reading:
Q: What are the risks of disciplining for a historic issue?
A: Disciplining an employee for a historic issue, especially one that was previously overlooked, carries many risks that employers should carefully consider.
If an employee is disciplined for past conduct without clear justification or due process, it may be determined that the employer failed to follow procedural fairness. It may be viewed that the issue was not severe if the employer previously accepted the conduct and took no action . A successful unfair dismissal claim is one of the main risks when terminating an employee if there is no valid reason.
Best practice is to address conduct issues promptly as they occur, so that if an employee ends up terminated for their conduct, the employer can demonstrate they have acted immediately after each incident.
Q: What can I do if an employee does not attend a disciplinary meeting?
A: If an employee fails to attend a disciplinary meeting, the first step is to contact them to determine the reason for failing to attend as there may be a reasonable explanation.
Employers cannot act against an employee for failing to attend a disciplinary meeting if the employee is absent due to accessing a leave entitlement and provides the required evidence or takes the leave in accordance with company policy. If an employee is utilising a leave entitlement, such as personal leave when a meeting is scheduled, the meeting should be rescheduled at a time when the employee is fit to return to work.
The next step is to organise another disciplinary meeting with the employee – this demonstrates you are providing the employee with another opportunity to attend. If an employee fails to attend a disciplinary meeting without a reasonable explanation, it may be appropriate to take disciplinary action against the employee for failing to follow a reasonable management direction.
In instances where the employee is not attending work and is not on an approved period of leave, this may be treated as an unauthorised absence, warranting disciplinary action.
HR kits/guides:
- The Employment Lifecycle Kit includes guidance notes on procedural fairness when taking disciplinary action and includes template letters for written warnings and termination.
- The Recruitment and Termination Kit also includes guidance on procedural fairness, taking disciplinary action, and template written warning letters.
Case studies:
Q: Can disciplinary action be taken for employees utilising leave entitlements?
A: An employer must not take disciplinary action against employees for utilising their leave entitlements, such as annual leave, as it is a workplace right. If an employer takes disciplinary action for this reason, it can be seen as taking adverse action, and as a result an employee could make a general protections claim. Adverse action can include when an employer ‘injures’ an employee’s employment.
An employee, however, can be disciplined for failure to comply with evidence requirements or workplace policies, resulting in an unauthorised absence. Unauthorised absences occur if an employee takes leave without approval.
Please contact CCIWA’s Employee Relations Helpline on 08 9365 7660 or via [email protected] for guidance on taking disciplinary action against employees.
