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Disciplinary Processes

Employment Law

Does your business need to resolve a misconduct or underperformance issue? Here is a good starting place.

Specific Issues

On-Demand Resources

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

Need advice about a disciplinary process? Call Anderson Legal for a fixed-price initial consultation.

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

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Workplace Disciplinary Processes

If you have searched “disciplinary processes” or for an “employment lawyer“, you will see there are many options available. Why get advice from Anderson Legal?

If you seek an experienced lawyer to help you when dealing with disciplinary issues, 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 business operators and managers attach their identity to their work, and disciplinary processes 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.

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Workplace Disciplinary Processes

Disciplinary Processes Australia
  • Dealing with workplace misconduct
  • Steps in disciplinary processes
  • Risks of disciplinary processes
  • Contested disciplinary decisions
  • Employer responsibilities

Dealing with workplace misconduct

Dealing with workplace misconduct can be a difficult issue for business operators and managers. Workplace relationships, commercial interests, and other priorities can cloud decisions and create legal risks on a number of fronts. Failing to appropriately act on employee misconduct carries its own risks for business operators and managers.

Understanding the common steps in disciplinary processes, the risks of disciplinary processes, and what rights exist for employers can assist business operators and managers in dealing with workplace misconduct.

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 six 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.

Risks of disciplinary processes

An employer can be liable for the misconduct of its employees, so properly handling a disciplinary process forms just one part of managing the legal and reputational risks of alleged misconduct.

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 issue a show cause letter inviting the employee to outline 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 outcomes available, possible disciplinary decisions 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

While experience shows that once a disciplinary decision has been taken, it can be difficult to overturn it, a flawed process increases the likelihood of the decision being contested.

Contested disciplinary decisions

Employees who are dissatisfied with a disciplinary decision may seek to challenge it in a number of ways. 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;
  • ‘Stop-bullying’ claim in the Fair Work Commission;
  • Unfair dismissal claim in the Fair Work Commission;
  • General protections claim in the Fair Work Commission;
  • Discrimination claim in an anti-discrimination commission or tribunal, such as the Queensland Human Rights Commission (QHRC) or Australian Human Rights Commission (AHRC); or,
  • 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.

Employer responsibilities

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

For a small business seeking to dismiss an employee, it is critical for it to comply with the Small Business Fair Dismissal Code. The purpose of the Small Business Fair Dismissal Code is to ensure small businesses are able to ensure dismissals are fair, thereby reducing their risk of successful claims against them.

If you are a business operator or manager dealing with a disciplinary process (or potential disciplinary process) and seek to obtain legal advice, contact Anderson Legal for a fixed-price initial consultation.

Specific Issues: Disciplinary Processes

Fair Workplace Investigations

Fair Workplace Investigations

Workplace investigations can involve many types of allegations, including breaching codes of conduct, failing to manage conflicts of interest, misusing property, and misconduct outside of work.
Ensuring a workplace investigation is fair is critical for businesses and organisations, as it minimises the risk of successful claims and disputes.
Disciplinary Process Policies

Disciplinary Process Policies

Businesses and organisations should have workplace disciplinary policies or procedures in place to ensure that legal, commercial and reputational risks are managed appropriately.
Failure to follow the law can give rise to successful claims against employers and other less obvious consequences.
Disciplinary Meetings

Disciplinary Meetings

The decision to hold a disciplinary meeting is a significant one for employers, as it represents a step that can have real consequences.
Dismissing Employees

Dismissing Employees

Getting informed about the legal requirements for dismissing employees and how to minimise the associated risks is prudent for all employers.
Issuing Show Cause Letters

Issuing Show Cause Letters

Prior to taking disciplinary action against an employee, particularly when termination is being contemplated, it may be necessary for an employer to issue a show cause letter to an employee.
Employers face real risks if they fail to afford procedural fairness prior to making disciplinary decisions.
Issuing Written Warnings

Issuing Written Warnings

Issuing a written warning is a step many employers take to signal disapproval to employees for certain misconduct or performance issues.
If written warnings are issued improperly, or articulated poorly, they can pose significant risks to employers. Such risks include discrimination claims, general protections claims, and breach of contract claims.
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 businesses and organisations 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
  • negotiating resolutions with respect to workplace disciplinary processes
  • developing internal complaint policies and resolution procedures
  • outlining the potential risks faced by employers dealing with disciplinary issues, such as:
    • unfair dismissal claims
    • general protections claims
    • unlawful termination claims
    • discrimination claims
    • breach of contract claims
    • reporting obligations to regulators
  • representing businesses and organisations 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 options:
    • Dealing with internal complaints
    • Undertaking workplace investigations
    • Preparing for disciplinary meetings
    • Contested allegations and findings
    • Possible referrals to external bodies
    • End of contract negotiations
  • Specific issues with disciplinary issues
    • Workplace investigations
    • Alternative resolution processes
    • Victimisation and reprisals
    • Business operators 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, managers 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: