What are your options when facing workplace disciplinary action?

Get a lawyer who has helped numerous people to resolve complex workplace disciplinary issues across Australia.

What are your options when facing workplace disciplinary action?

Get a lawyer who has helped numerous people to resolve complex workplace disciplinary issues across Australia.

How this firm can help protect you

How this firm can help protect you

Andrew Anderson, Legal Director, is an award-winning lawyer with a passion for employment law. He is independently recommended as being among the leading corporate crime, white-collar crime and regulatory investigations lawyers in Australia (Doyles Guide, 2020).
Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, Fair Work Commission and multiple other courts dealing with trials and other hearings, Andrew Anderson understands how to succeed in complex and difficult cases.
Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from simple cases 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 fighting for justice is an everyday pursuit.

Learn more about workplace discipline

1. Specific workplace disciplinary processes

Any business or organisation should have workplace disciplinary processes to ensure that when disciplinary action is contemplated, there are systems or procedures in place to ensure legal, commercial and reputational risks are managed. Failure to follow the law when dealing with disciplinary issues can give rise to successful claims against employers, in addition to other less obvious consequences.

Complaints Handling Processes

There are many ways employees and others may raise complaints or grievances within a workplace. Employers have a responsibility to manage and respond to complaints and grievances, which may occur through a formal complaints handling process.

In managing complaints, employers may have a range of complementary as well as competing interests for commercial, reputational and legal reasons. For instance, a complaint may expose a business to reputational harm, however, their legal obligations compel them to act. Complaints handling processes are important to ensure fairness to all parties as well as to ensure regulatory compliance with lawful obligations and duties.

Workplace Investigations

Workplace investigations are frequently undertaken with respect to issues relating to workplace bullying, sexual harassment and other forms of misconduct. They are often used to resolve complex or contested workplace allegations.

Workplace investigations are increasingly relied upon by employers to resolve complex or contested allegations or complaints that arise within the workplace. For many people, the potentially far-reaching effects from a workplace investigation can come as a shock, which underscores why early advice from an experienced lawyer can be crucial to protecting your rights and advancing your interests.

Performance Management

When performance management is correctly undertaken, employers, executives and managers mitigate the risk of successful claims against them, such as complaints relating to workplace bullying and workplace harassment.

Peformance management in a workplace may involving both formal and informal monitoring of employee performance. Generally, a business or organisation ought to have clear and transparent performance criteria, particularly if an employee is to be put on a performance improvement plan. Businesses that have effective systems and procedures for performance management minimise the risk of adverse claims being made against them and their staff.

Responding to a Written Warning Letter at Work

If you receive an unfair written warning, there are a number of steps you can take to overturn its effect. Written warnings may be relied upon by employers for subsequent disciplinary actions to justify greater actions, such as dismissal.

While some written warnings at work state justified concerns about an employee’s capacity or conduct, others may be unfair, vague or misapprehends or overlooks some important facts. Failing to take appropriate action to respond to an unfair written warning can make it more difficult to later challenge its validity, making it harder to respond to any later disciplinary action. For this reason, it is important to take action following a written warning at work.

Responding to a Show Cause Letter at Work

A show cause letter is often sent during a disciplinary process to notify an employee of possibility of action being taken against them, such as the termination of their employment, and give them an opportunity to provide a response.

If you need to respond to a show cause letter at work, it is necessary to understand the importance of your response to what may follow. Failing to raise certain issues, or addressing the wrong issues, may not only see you face a disciplinary decision that is harsh, unjust or unreasonable, you may also jeopardise your ability to take action over a wrongful decision. Getting advice when responding to a show cause letter can be critical to the outcome. 

Dismissal & Termination Notices

Employers may choose to dismiss an employee for a conduct or capacity issue, which may follow a workplace investigation. The termination of employment may be without notice in cases of serious misconduct, such as for theft.

If you are dismissed from work and seek to know your options, there may be some steps you can take if you believe you were treated unlawfully or unfairly. Employees who are dismissed following a workplace investigation may seek to challenge the fairness of the investigation, or the reasoning in an investigation report, which may be the basis for an employer’s decision to dismiss. Flawed investigations can lead to successful unfair dismissal claims.

2. Common issues with disciplinary processes

If you are facing an allegation or issue that may result in disciplinary action, getting informed about the common issues that arise with disciplinary processes might be crucial to protecting your interests and avoiding unfair decisions against you.

Below is a list of common issues that people confront when dealing with workplace disciplinary processes. While the information about each issue has been created to help people seeking to learn more about these common issues, it cannot – and is not meant to – substitute legal consultation. To get tailored advice about an issue that may be raised in a specific case, contact Anderson Legal.

Unfair Workplace Disciplinary Action – Your Options

When an employer unfairly imposes disciplinary action against an employee, they can be liable themselves under claims ranging from breach of contract, unfair dismissal, general protections claims right through to breaches of health and safety laws.

An employee may have many avenues to pursue compensation or reinstatement against an employer who wrongly or unfairly imposes disciplinary action. Unfair or unlawful actions by an employer can result in successful workers’ compensation claims, work health and safety breaches, as well as claims under anti-discrimination laws, unfair dismissal laws and workplace laws that afford employees general protections.

Unfair Workplace Investigations – Your Options

If you are facing a workplace investigation and are concerned that the process is unfair for some reason, getting informed about your options is essential to protecting your rights and advancing your interests.

A workplace investigation involves an examination of an allegation or allegations of wrongdoing against an employee. Its purpose is to enable decisions to be made about the issue in a way that enforces workplace standards, complies with legal obligations, and manages workplace risk. There are steps people can take to ensure procedural and substantive fairness when facing a workplace investigation that they believe to be unfair in some way.

Confidentiality & Workplace Investigations

There is a duty on employers to preserve confidentiality during workplace investigations, due to the risks associated with real or perceived reputational damage. Failure to preserve confidentiality can result in successful claims against employers.

When faced with allegations and the need for a workplace investigation, employers have a duty of care with respect to maintaining confidentiality. Successful workers’ compensation claims and defamation claims may follow breaches of confidentiality obligations where reputational harm follows. For this reason, workplace investigations often involve requirements imposed on employees to strictly preserve confidentiality as part of the investigative process.  

Suspensions from Work – Your Rights

If you have been suspended from work and want to know your rights, it is critical to get informed about what powers employers have to suspend an employee as well as the responsibilities owed to their employees facing such a situation.

Whether an employer may give an employee a direction to not attend work or not perform their job for a period of time will likely depend on a range of factors, such as the conditions set out in their employment contract, enterprise agreement or industrial award. Suspensions from work most frequently occur when a workplace investigation is called for in response to a serious workplace complaint, such as workplace bullying or sexual harassment.

3. Challenging disciplinary action

For anybody facing a disciplinary process at work, there can be a number of consequences that can result. For many people, the potentially far-reaching effects of workplace disciplinary action come as a shock, which underscores why early advice from an experienced lawyer can be crucial to protecting your rights and advancing your interests.

Challenging Proposed Disciplinary Action

As an employee, you may have many options available to you to challenge proposed disciplinary action. This may range from informal, brief discussions that may solve the issue to formal, contested litigation in courts.

The failure to give notice of proposed disciplinary action can give rise to successful claims against employers, so employees are often given notice of potential or proposed disciplinary action. It is at that time – in those moments – when an employee has the chance to quell the proposed disciplinary action. Failing to adequately respond to proposed disciplinary action at any early time can make it more difficult to ultimately obtain the right outcome.

Challenging Disciplinary Decisions by Employers

If you wish to challenge a disciplinary decision taken against you, it is often necessary to act quickly and decisively. Acting quickly and decisively, however, can be difficult if you feel blindsided. Get informed about your options and relevant timelines.

Challenging a disciplinary decision by an employer is often a daunting task for an employee. The sense of threat to your reputation and employment security can make it seem you may be fighting a losing battle. However, employers can and do get it wrong. Across Australia employees have rights and are afforded protections that means when a decision is made that is unjust, unfair or unreasonable, you can take action.

General Protections Claims (Adverse Action)

In Australia, there are certain protections (called general protections) employees have that are designed to prevent an employer from taking adverse action over – such as disciplining or dismissing a worker because they exercise a workplace right.

A general protections claim allows a worker to bring a claim against their employer for taking actions that cause detriment (adverse action) because they exercise a workplace right or for some other protected reason. It is possible for employees to apply for injunctions to stop the decisions or actions taking effect, as well as to pursue compensation and other remedies for the resulting harm or damage caused by the adverse action.

Unfair Dismissal Claims

Following a workplace investgiation that results in an employer deciding to dismiss an employee, it is often open for that employee to dispute the dismissal by filing an unfair dismissal claim in the Fair Work Commission.

Successful unfair dismissal claims may result in reinstatement and compensation being ordered by the Fair Work Commission. There are strict deadlines that apply to unfair dismissal claims so it is important that anybody considering lodging an unfair dismissal claim gets the advice and guidance needed to successfully navigate the dispute. Anderson Legal provides expert advice and guidance with respect to unfair dismissal claims.

Do you need personalised legal advice or representation about a disciplinary process you are facing, or your options with respect to specific disciplinary action taken against you?

If you are facing potential disciplinary action or have a related issue, obtaining early and authoritative advice may be essential to protecting your rights and legal interests. Andrew Anderson has experience in assisting individuals to deal with issues arising with respect to disciplinary processes within workplaces.

If you need to contact Anderson Legal, you can call the firm on (07) 3505 7070. Alternatively, you can complete our form and we will try to contact you.

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