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Are You Facing Disciplinary Action at Work?

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Disciplinary Action

Employment Law

Are you facing disciplinary action at work and not sure where to begin? Here is a good starting place.

Specific Issues

On-Demand Resources

View on-demand information about specific issues related to workplace disciplinary action in Australia.

If you are facing disciplinary action, get legal advice from Anderson Legal with a fixed-price initial consultation.

This firm safeguards what matters most and acts purposefully in times of crisis. It acts for employers and employees.

Having successfully represented litigants in the High Court of Australia, Royal Commissions, Fair Work Commission and multiple other courts and tribunals, Andrew Anderson has a demonstrated record of success in complex and difficult cases.

As a boutique law firm, Anderson Legal is dedicated to providing expert advice and representation in dealing with workplace issues. Although based in Brisbane, this firm advises clients nationally.

Andrew Anderson, Legal Director, is an experienced lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021)

Andrew Anderson - Lawyer

Workplace Disciplinary Action

If you have searched “disciplinary action at work” or for an “employment lawyer“, you will see there are many issues to consider. Why choose Anderson Legal?

If you seek an experienced lawyer to help you when facing disciplinary action at work, Andrew Anderson has a proven track record of successfully guiding his clients through challenging, complex and serious problems.

The areas of law Anderson Legal handles are narrow yet deep. It ensures this firm can handle all cases to the highest standards, no matter the complexity.

Personalised Solutions

Anderson Legal takes the time to understand the circumstances and priorities of each of its clients and tailors solutions accordingly.

Many people attach their identity to their employment or profession and disciplinary action at work can significantly impact reputations and livelihoods.

Resolving workplace issues is not always straightforward, as other issues often affect decisions – reputational risks, financial realities, and opportunity costs.

This firm offers tailored strategies to resolve workplace concerns.

Workplace Bullying Lawyer - Anderson Legal

What is workplace misconduct?

If you are facing disciplinary action at work over misconduct, understanding what may constitute ‘misconduct’ is essential.

In Australia, workplace misconduct is generally separated into two categories: general misconduct and serious misconduct. While general misconduct may result in disciplinary action up to and including dismissal, serious misconduct may justify termination of employment without notice.

General Misconduct

Executives and employees often agree in their employment contracts to not engage in misconduct, or otherwise to follow the reasonable policies and procedures of their workplace. The term ‘misconduct’ is not always defined. Many workplaces have codes of conduct or standards of behaviour in policies, which outline what may be regarded as misconduct.

If an employee is proved to have engaged in misconduct, they may face disciplinary action up to and including termination of employment. However, unlike when ‘serious misconduct’ is proved, the employee will still be entitled to their notice period as provided by their relevant contract, enterprise agreement, or award.

Serious Misconduct

Serious misconduct includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract or conduct that causes a serious and imminent risk to the health and safety of a person or the reputation, viability, or profitability of the employer’s business. Examples of serious misconduct include theft, fraud, assault, sexual harassment, being intoxicated at work, or a refusal by the employee to carry out a lawful and reasonable instruction.

The above meaning of ‘serious misconduct’ is reflected in the Fair Work Regulations 2009 (Cth), where the definition of serious misconduct is outlined:

Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; or

(iv) assault; or

(iv) sexual harassment;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.

Steps in disciplinary processes

Failing to afford procedural fairness in a disciplinary process can be a defect that results in a court, commission, or tribunal overturning the decision.

The steps in a disciplinary process usually involve some or all of the following steps:

  1. Define the complaint or grievance
  2. Undertake a workplace investigation
  3. Allow an opportunity to respond
  4. Make findings about the issues
  5. Decide on disciplinary action
  6. Deal with any disputed decisions

While an employer may wish to act immediately in a situation involving potentially serious misconduct, it is essential to ensure proper processes are followed to minimise the risk of a successful challenge to a disciplinary decision.

Possible disciplinary decisions

If an employee is not proven to have engaged in misconduct, there is no cause for disciplinary action.

There are many different disciplinary decisions an employer can take against an employee who has engaged in misconduct. Before an adverse (unfavourable) decision is made by an employer, it is usually prudent for them to give the employee an opportunity to show cause why the contemplated decision should not be taken against them. It is an important step consistent with principles of procedural fairness.

Noting that some workplaces do not have certain disciplinary outcomes available, possible outcomes include:

  • no action / management resolution
  • verbal or written warning
  • mandatory counselling or training
  • performance improvement plan
  • fine or deduction of wages
  • suspension from the workplace
  • demotion or loss of rank
  • termination with notice
  • summary dismissal

Experience shows that once a disciplinary decision has been taken, it can be difficult to overturn it. For this reason, many people facing discplinary action at work put their efforts into properly dealing with complaints or grievances during the workplace investigation or show cause phase (before a decision is made).

Contesting disciplinary decisions

There are several actions an employee may take to challenge disciplinary decisions. This includes:

  • Internal appeals against disciplinary decisions, as may be provided for in a modern award, enterprise agreement, employment contract, or the policies and procedures of a workplace;
  • Filing a ‘stop-bullying’ claim in the Fair Work Commission;
  • Filing an unfair dismissal claim in the Fair Work Commission;
  • Filing a general protections claim in the Fair Work Commission;
  • Filing a discrimination claim in anti-discrimination commission or tribunal, such as the Queensland Human Rights Commission (QHRC) or Australian Human Rights Commission (AHRC); or,
  • Filing a breach of contract claim in a court.

Disputed disciplinary decisions can create legal, financial and reputational risks to businesses and organisations. It is the reason why business operators, executives and managers tasked with making a disciplinary process must be mindful of the risks involved in disciplining an employee.

What rights exist for employees?

Disciplinary processes are significantly influenced by industrial awards, enterprise agreements, employment contracts, as well as workplace policies and procedures. However, a ‘fair’ disciplinary process where adverse findings may be made against an employee typically should involve consideration of the following issues:

  • procedural fairness
  • reasonable accommodations
  • employee support
  • health and safety rights
  • self-incrimination privilege
  • confidentiality considerations

People may ask, what does an unfair disciplinary process look like? Common concerns include:

  • Bias or perceived bias from the investigator / decision-maker;
  • Conflicts of interest between participants and the investigator / decision-maker;
  • Failure to follow relevant policies, procedures and industrial instruments;
  • Vague, unclear and unparticularised allegations;
  • Changes to the allegations or investigation without explanation;
  • Lack of transparency regarding the evidence gathered;
  • Failure to disclose the workplace investigation report;
  • Failure to give adequate notice before responses are required;
  • Directions to not communicate with potential witnesses;
  • Denial of access to a support person;
  • Delays in progressing or finalising the investigation; and,
  • Omission to investigate issues raised by a respondent.

If you are facing a disciplinary process for misconduct and seek to obtain legal advice, contact Anderson Legal for a fixed-price initial consultation to get personalised advice about your situation.

Specific Issues: Disciplinary Action

Responding to show cause letters

Responding to show cause letters

When executives and employees receive a show cause letter and need to respond, they often have little time to consider their options. Getting advice before responding to a show cause letter can be a real advantage.
Getting informed about how to respond effectively to a show cause letter is critical for anyone facing such an issue.
Unfair misconduct allegations

Unfair misconduct allegations

If you are a business owner or manager facing a false or unfair misconduct allegation, you are likely to want to know how to bring out the truth. Getting informed about your options is a good first step.
Getting informed about your options is prudent for any workplace issue. It is all the more important if the allegations are false, unfair or vexatious.
Unfair Workplace Investigations

Unfair workplace investigations

While fair workplace investigations may help to enforce workplace standards, comply with legal obligations, and minimise legal risks, unfair workplace investigations can do the opposite.
Employers may face legal action for the harm or damage caused through inadequate or unfair workplace investigations.
Workplace investigations into misconduct

Workplace investigations into misconduct

If you are dealing with an investigation into misconduct, it is crucial to understand how to uphold your rights and advance your interests.
Free Consultation

Anderson Legal offers a fixed-priced initial consultation to businesses, executives, and employees concerning disciplinary processes.

Who this firm assists

Anderson Legal has a focus on resolving workplace problems. It provides advice and legal services to:

  • small business operators
  • executives in medium to large enterprises
  • employees in medium to large enterprises
  • public service employees

The potential impact of disciplinary processes on reputations, relationships, and livelihoods makes it critical to have an employment lawyer who is equal to the task. If you need an employment lawyer, there are many reasons why Anderson Legal should be your preferred choice:

  • Andrew Anderson, Legal Director, is an experienced lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021).
  • Having successfully represented litigants in the High Court of Australia, Royal Commissions, Fair Work Commission, and multiple other courts and tribunals, Andrew Anderson has a demonstrated record of success in complex and difficult cases.
  • Prior to operating a law firm, Andrew Anderson worked as a Principal Crown Prosecutor in Queensland and barrister in practice at 8 Petrie Terrace Chambers. His depth of courtroom experience ranges from straightforward claims right through to complex trials and appeals.
  • Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and working for just outcomes is an everyday pursuit.

Read below how this firm can assist you, what it costs to get advice, and when to contact this firm.

How this firm can assist

With respect to workplace disciplinary processes, this firm assists its clients to navigate all kinds of issues, including:

  • advising on whether certain conduct may be classified as ‘workplace misconduct’
  • assisting with workplace investigations related to disciplinary processes
  • drafting correspondence on behalf of clients, including replies to show cause letters
  • negotiating resolutions with respect to workplace disciplinary processes
  • detailing the internal complaint processes and resolution possibilities
  • outlining the potential risks faced by a person facing allegations at work, such as:
    • criminal law referrals
    • professional conduct referrals
    • anti-corruption agency referrals
    • civil litigation claims
  • representing clients litigating disputed disciplinary processes in courts and tribunals

Note: Anderson Legal does not provide advice or representation for compensation claims under personal injury or workers’ compensation laws.

What it costs to get advice

Fixed price initial consultation

Fixed-Price Consultation
One-Hour Consultation
No-Obligation Consultation

A fixed-price initial consultation is $495 incl. GST for up to one hour, which may be tax deductible (consult your tax advisor).

If you are dealing with a workplace disciplinary issue, book an appointment for an initial consultation with Anderson Legal. It is designed to deliver clear and timely advice that allows you to understand the relevant legal issues and make informed choices about the action that may be taken.

The time is devoted to ensuring an understanding of the particular issues to allow advice to be given based on the information you provide, which may include:

  • The legal framework for disciplinary processes:
    • Employer rights and responsibilities
    • Employee rights and responsibilities
    • Is it ‘misconduct’ or ‘serious misconduct’?
    • Specific procedures adopted by the workplace
  • Outline of possible disciplinary outcomes
  • Disciplinary process response options:
    • Dealing with internal complaints
    • Responding to workplace investigations
    • Preparing for disciplinary meetings
    • Contesting allegations and findings
    • Possible referrals to external bodies
    • End of contract negotiations
  • Specific issues with disciplinary issues
    • Workplace investigations
    • Alternative resolution processes
    • Victimisation and reprisal action
    • Public servants accused of misconduct
    • Executives accused of misconduct

An initial consultation with Anderson Legal is obligation-free, meaning there is no expectation or commitment to further legal work or costs. If you want to engage this firm to provide you with further advice or legal representation, estimates of costs will be provided as far as possible.

Initial consultations are by appointment only, with in-person, video, and phone options possible.

Representation for disciplinary processes

Anderson Legal is transparent about how it charges legal fees.

This firm generally charges on a capped-fee, fixed-fee, or time-costed basis. How you are charged is something that may be negotiated and your preferences are taken into consideration.

Please note that Anderson Legal does not undertake legal work on a ‘no-win, no-fee’ basis.

In representing businesses, executives, and employees with workplace disciplinary processes, Anderson Legal puts in place a formal costs agreement with all clients. This includes a disclosure statement outlining important rights, as well as quotes or estimates for applicable legal fees.

When to contact this firm

Employment law issues can have strict timeframes, so it is prudent to seek legal advice as soon as possible for employment law concerns.

Disciplinary action in workplaces can involve many legal complexities, which can have profound consequences for reputations, relationships, and livelihoods. It is the reason why it can be critical for business operators, executives and, employees to get urgent legal advice when dealing with such issues.

If you want legal advice, you should call Anderson Legal to set up an appointment for a fixed-price initial consultation: