1. What is a disciplinary meeting?

1. What is a disciplinary meeting?

A disciplinary meeting is an official meeting called by an employer to discuss alleged misconduct or performance issues with an employee. This process is designed to ensure procedural fairness by allowing the employee to present their side of the story before any disciplinary action, including termination, is decided.

Key Points:

1. Purpose: The purpose of a disciplinary meeting is to provide the employee with a chance to respond to allegations or findings of misconduct or poor performance.
2. Opportunity to respond: The meeting should offer the employee a chance to respond to the allegations or findings.
3. Procedural fairness: Allowing employees to respond to allegations or findings before any final decision about disciplinary action, including dismissal, is a key component of procedural fairness.

Key Questions:

1. Why hold a disciplinary meeting?

• Procedural fairness: Employers must provide employees with a chance to respond to potential disciplinary actions.
• Legal requirement: Under the Fair Work Act 2009 (Cth), failing to provide this opportunity can render a dismissal harsh, unjust, or unreasonable.

A disciplinary meeting allows an employee to respond to proposed disciplinary action. It is particularly important when an employer is contemplating dismissing an employee. Sometimes an employee does not feel they can attend or properly participate in a disciplinary meeting (e.g., because of ill health). In such cases, an employer may provide an alternative way to respond to the concerns, such as a response in writing.

In Australia, if an employer fails to give an employee a chance to respond to proposed disciplinary action, their decision may be reversed, and compensation ordered. The idea that employers should allow employees to respond to proposed disciplinary action is well established.

2. What happens at a disciplinary meeting?

Typically a disciplinary meeting will involve a discussion about allegations or findings of potential misconduct or sustained poor performance. Notice should be given to the employee about the proposed disciplinary meeting to give them a chance to adequately prepare. An employee called to a disciplinary meeting will generally be provided:

• Specific allegations: Clear details of the alleged misconduct or performance issues.
• Evidence: Either reference to, or disclosure of, any evidence that supports the allegations.
• Potential consequences: The disciplinary actions that might be taken if the employee fails to ‘show cause’.
• Response guidelines: Instructions on how to respond, including deadlines, and rules such as confidentiality.

3. Who can call a disciplinary meeting?

• Typically issued by employers or designated managerial staff within an organisation.

In any business or organisation, procedures are put in place for different employees to perform different roles. In some circumstances, specific delegations are necessary for a disciplinary process to commence. As such, disciplinary proceedings may be taken in a way that gives rise to a question as to whether they have been validly commenced or continued.

4. When are disciplinary meetings held?

Notice of a disciplinary process and meeting may be given at different times after a grievance is raised:

• Investigation: Before investigating allegations to gather initial responses.
• Post-investigation, pre-decision on findings: After investigating to allow for responses to the findings.
• Prior to disciplinary action: Before any disciplinary action is finalised.

Typically, notice of a disciplinary meeting is given in the context of a disciplinary process rather than at the stage of investigation. However, processes are not always formalised, particularly within smaller businesses. No matter the stage at which a disciplinary meeting is called, it should always be issued prior to a disciplinary decision. If a decision has already been made to discipline or dismiss the employee, the employee is given no real opportunity to respond.

5. How are responses in disciplinary meetings used?

• Decision making: To inform the final decision on disciplinary action.
• Legal and regulatory reviews: May be used in legal proceedings or reviews by regulatory bodies.

For an employee, often the aim of participating in a disciplinary meeting is to convince an employer not to take certain action against them. Practically, an employer may have an obligation to investigate issues raised by the employee as part of their response. What occurs in a disciplinary meeting may be relevant to any claim someone wishes to bring in a court or tribunal. This can be a double-edged sword. While a response may assist someone in advancing their claim, such as an unfair dismissal claim, the opposite may be true where an employee fails to raise certain arguments or important evidence.

It is critical to understand that responses in disciplinary meetings may also be used in a number of other ways. For instance, what is said may be disclosed to professional regulatory bodies or law enforcement agencies. This may make issues such as the privilege against self-incrimination relevant. It highlights why it is prudent for people faced with serious allegations to get legal advice as early as possible.

2. Options for responding to a disciplinary meeting

2. Options for responding to a disciplinary meeting

Responding effectively requires understanding your rights, the allegations, and the best strategies for your situation. There are a number of options to consider:

1. Obtaining advice
2. Challenging the process
3. Challenging the allegations
4. Negotiating a settlement
5. Arguing for lesser consequences

1. Obtaining advice

When an employee is called to a disciplinary meeting they are often also instructed to keep the process confidential. The isolation can leave people uncertain of the way forward. In such moments, getting advice and guidance from an expert is prudent, particularly when the stakes are high.

Experience shows that executives and employees sometimes delay getting legal advice (if at all). It can be due to fears or concerns that don’t actually reflect their own interests. Such concerns can impact their decision to seek expert assistance from an employment lawyer. It is an important issue because it is surprising how often employers fail to:

• afford procedural fairness;
• comply with their own policies and procedures; or
• consider relevant information.

By the time notice of a disciplinary meeting is given, it can feel like the easy option is for employers to follow through with their proposed disciplinary decision. Yet advice and guidance can help you to better understand your options. Moreover, it can help you to tip the scales back in your favour.

2. Challenging the process

Challenging the process refers to raising issues that go to matters of procedural fairness.

A workplace may be subject to rules about how a complaint or grievance is to be managed. For example, it may be from particular laws, industrial instruments, employment contracts, or internal policies and procedures. An employer who fails to follow these in calling a disciplinary meeting may open up a basis to challenge the process. There can sometimes be sound reason to argue that procedural fairness has not been afforded in such circumstances. Flawed processes may be subject to injunctions to preserve the status quo, withdrawn, or set aside.

3. Challenging the allegations

To challenge allegations in the workplace, it is helpful to begin with first principles.

Challenging allegations requires a focus on two issues: credibility and reliability. In essence, credibility concerns honesty whereas reliability concerns accuracy. An allegation may be honestly raised but it may depend on a person who is mistaken or otherwise wrong.

One of the important tasks in challenging an allegation is to identify, as early as possible, the relevant information or evidence that may show an allegation to lack credibility or be otherwise unreliable. The reason it is important to do so as early as possible is to ensure relevant witnesses are interviewed while matters are fresh in their mind, or to prevent other
evidence being lost or destroyed. It can be difficult for an employee to respond effectively to allegations in a disciplinary meeting if they have received no prior notice of what they are alleged to have done.

4. Negotiating a settlement

For an employee facing a disciplinary process, often the aim of ‘without prejudice’ negotiations is to resolve all disputes quickly and quietly. It can see an employee reach a commercial settlement with their employer, affording the employee the resources, time, and space to pursue other opportunities.

The benefit of negotiated resolutions

When faced with an unjust situation, it is understandable why you may wish to be vindicated. We all like to be right. However, contested disciplinary processes create real risks for both employers and employees. Sometimes after working through both the risks and rewards of different options, reaching a negotiated settlement to a dispute can start to look attractive to both sides – it’s the bird in the hand instead of the two in the bush.

Sometimes, an employer is motivated to end a dispute about conested allegations or disciplinary process on confidential terms. While not a ‘win’, it can give an employee facing allegations or disciplinary action an ‘exit lane’ away from a protracted fight. Where appropriate, such settlements can afford reputational protections and commercial terms that make it financially viable for the departing employee to exit the workplace.

Initiating confidential ‘without prejudice’ negotiations with an employer is something generally undertaken by a lawyer on behalf of an employee. Power imbalances may otherwise impede discussions between the employer and employee, particularly at a time when an employee is facing a disciplinary process that may result in their dismissal.

Confidential settlements are not always possible

While confidential negotiations and settlements are not always possible or appropriate, their use as a complementary strategy in trying to resolve disputes can see quick resolutions to situations that may otherwise take months to resolve through litigation. Handled incorrectly, allegations of contractual breaches, or worse, can be made.

Seeking to reach a mutual agreement or negotiated settlement generally requires a clear understanding of your legal rights, obligations and options. Agreements of this kind often involve certain guarantees, indemnities or waivers, which can have real consequences when breached. Again, this highlights why it is prudent for ‘without prejudice’ negotiations to be handled with care and with the benefit of legal advice.

5. Arguing for lesser consequences

So, what do you do when you want to keep your job but accept you made a mistake or need to make some improvements to your performance? Receiving a notice of a disciplinary meeting in those circumstances may mean trying to argue for a lesser consequence than the termination of employment.

In some instances, an employee may simply accept their conduct fell below the appropriate standard or that their performance needs to improve. When there is no dispute that the employer has a valid concern about an issue, it can make sense to focus on mitigating the consequences.

The fine line to balance

Outlining why a particular disciplinary outcome would be appropriate requires considerable care. There can be a fine line between seeking to mitigate culpability and blame-shifting. In the latter case, an employer may respond that such explanations wrongly play down the seriousness of the conduct, or otherwise demonstrate a lack of insight.

What may be raised to seek to explain (though not necessarily seek to excuse) why something occurred generally falls into two categories. First, issues internal to the workplace. Second, issues external to the workplace.

Other relevant issues

In seeking to dissuade an employer from dismissing an employee other factors may be relevant. An example of this may be an exemplary work history. Long-standing employees with a good history often are on a much stronger footing.

Any insight, training or programs that may be, or have been, undertaken to address any concerns may also be relevant as to whether the employer can have ongoing trust and confidence in the employee.

Arguing for a lesser penalty than dismissal is not easy. Mitigating the consequences of misconduct is not always possible. Asking for another opportunity to improve performance will not always be granted. For responses of this nature to a show cause letter, maintaining a focus on why a decision to terminate employment would be harsh, unjust, or unreasonable
may give an employer just enough pause for thought.

3. Key elements of effective responses

3. Key elements of effective responses

In a disciplinary meeting, a compelling response will be one that is credible and reliable. Explanations should be clear, well-structured, and tailored to the specific circumstances. It can require care to ensure that your response addresses all the allegations or purported findings and presents your side of the story clearly and convincingly. For a disciplinary meeting, there are a number of elements that can go into producing an effective response:

1. Read the notice carefully
2. Seek advice and guidance
3. Gather evidence
4. Prepare your response
5. Review, edit and submit

1. Read the notice carefully

• Understand all the allegations made against you.
• Note the meeting time and the specific instructions.

It can be a source of disagreement whether an employer provides an employee with witness statement or other evidence prior to a disciplinary meeting. Disputes about these issues can arise during a workplace investigation or upon notice of a disciplinary meeting. The resolution of such disputes is not always easy. Procedural fairness depends on all the circumstances, including the relevant laws and policies.

2. Seek advice and guidance

• Consider consulting with a lawyer or a union representative.
• Professional support can provide valuable advice on how to frame your response and ensure that your rights are protected throughout the process.

Dismissal from a workplace can have far-reaching consequences. It can impact your reputation, livelihood, and financial security. For this reason, it is prudent for people to get legal advice before attending a disciplinary meeting.

Tailoring every response to the specific circumstances of the case is always necessary. There is no ‘one size fits all’ approach to preparing for or responding to allegations. An experienced lawyer can draw on their knowledge of the law and past cases that may have involved similar issues. This bank of knowledge can make a crucial difference to the ultimate outcome.

3. Gather evidence

• Collect any evidence that supports your case.
• Directions given by an employer complicate gathering evidence

When given notice of a disciplinary meeting, you may face some hurdles in gathering evidence. For example, suspension from work impedes access to information. Also, it is common for employers to direct employees to keep disciplinary processes confidential. So, it may not be so simple to speak to your colleagues. As such, gathering the available evidence can seem easier in theory than it is in practice.

To gather relevant evidence, it is necessary to know what rights and options you may have to get it. Moreover, it is critical to know what obligations exist for employers to consider it.

Evidence relevant to a response may go beyond simply addressing the allegation. It can also relate to evidence by experts, such as doctors, psychologists, or counsellors. Understanding how evidence may be relevant is not always obvious. The legal issues associated with certain forms of evidence can also be complex.

Employers are not expected to have the skills of police or lawyers in dealing with evidence. That said, if you understand the reasonable expectations they must meet, it can help you frame your response.

4. Prepare your response

• Address each allegation individually.
• Provide a clear and concise explanation or rebuttal for each point.

You may have many choices to make when preparing for a disciplinary meeting. However, the situation is likely unfamiliar, involves short timeframes, and is often stressful. In such circumstances, people do not always consider their rights and true options. It is why seeking advice and guidance is a critical step when preparing for a disciplinary meeting.

Narrowing the points in dispute can be a source of strength. Yet, it may also be necessary to raise new issues. Sometimes, many things may have contributed to the issues raised by an employer. Such issues may be personal to the employee, or an external factor that needs consideration.

Identifying what is accepted or rejected is an essential step when responding to allegations. Balancing strong challenges with reasonable concessions can be difficult. Decisions of this nature are best made against the applicable legal principles and with the benefit of professional support.

5. Review, edit and submit

• Ensure your response is clear, concise, and free of any emotional language.
• Deal with allegations in a logical manner with reference to the evidence.

While not always easy, it is best to respond to the issues calmly and purposefully.

People can underestimate how much work it takes to prepare for a disciplinary meeting. When something is unfamiliar, having realistic expectations can be difficult. This is particularly so when you feel the situation is unfair or unreasonable and are unsure what the outcome will be.

Even with a perfectly rational response, an unfair decision may result. It may be disappointing, even devastating. Getting appropriate legal support can make a real difference. Other supports include employee assistance programs (EAP), doctors, and counsellors. Defending your rights and advancing your interests is possible with a proper strategy.

4. The role of a lawyer in responding

4. The role of a lawyer in responding

Work can be one of our defining characteristics, or at least play an important part in how we perceive ourselves. It is important not to underestimate the impact unfair disciplinary action or dismissal can have on a person. This firm helps to defend executives and employees who face an unfair situation at work and wish to act against it.

Receiving notice of a disciplinary meeting is a serious matter that can have significant consequences on your employment and professional reputation. While it may be tempting to deal with the matter independently, hiring a lawyer to assist you in responding to the situation may be a prudent decision for several reasons.

1. Legal expertise and knowledge

A lawyer brings extensive knowledge of employment law and the legal frameworks governing disciplinary processes within workplaces. This expertise can help you understand your rights and your employer’s obligations, ensuring that your response is both legally sound and strategically effective.

2. Tailored and strategic responses

Lawyers are skilled in crafting tailored responses. They can highlight procedural flaws, present mitigating factors, and identify sources of evidence to support your case. Their ability to structure a compelling argument can significantly enhance the persuasiveness of your intended response, potentially preventing disciplinary action.

3. Navigating complex issues

The legal implications of a disciplinary meeting can be complex. A lawyer can help you navigate this terrain, advising on the strengths and weaknesses of different courses of action. This includes understanding the potential outcomes, knowing when to negotiate for a settlement, and recognising when to escalate the matter to a legal tribunal if necessary.

4. Profesional communication

Facing a disciplinary process is inherently stressful. The potential threat to your livelihood can be overwhelming. A lawyer can alleviate some of this stress by assisting with communication, advising you on your rights, and providing a clear path forward. They can help to ensure that your intended response is professional, respectful, and, above all else, represents your best interests.