Steps in Disciplinary Processes

The steps in disciplinary processes relate to procedural fairness. In Australia, unfair disciplinary processes may be challenged and decisions reversed. Employers and employees both face risks when dealing with a disciplinary process, which may be minimised by early advice and assistance from an experienced employment lawyer.

Disciplinary Process Steps

Anderson Legal provides advice to employers and employees in Australia about steps in disciplinary processes.


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Disciplinary Process Steps

Anderson Legal provides advice to employers and employees in Australia about steps in disciplinary processes.

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View our growing library of articles and webinars, which are accessible no matter the time of day or night.

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To understand whether this firm can assist you, Anderson Legal provides a free, no-obligation initial consultation.

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Steps in Disciplinary Processes

Disciplinary processes can be stressful for all involved. It may be prudent for people to not just get informed about the possible steps, but also obtian expert advice.
This section deals with the following:

Steps in Disciplinary Processes

Disciplinary processes can be stressful for all involved. It may be prudent for people to not just get informed about the possible steps, but also obtian expert advice.
This section deals with the following:

Steps in Disciplinary Processes

Ideally, a workplace will have a disciplinary policy that will set out the steps in disciplinary processes that ought to be expected if a complaint or grievance arises about an employee. A disciplinary policy will generally complement other policies and procedures, such as a code of conduct. For businesses without a disciplinary policy, it may be important to obtain legal advice to minimise the risk that the disciplinary process is procedurally unfair or itself becomes the source of a bullying, discrimination, or adverse action claim.

Whether all steps in disciplinary processes are followed and the degree of time spent on each step will differ from case to case. There are many variables, including whether the complaint or grievance gives rise to general misconduct or serious misconduct. It is often these variables, or departures from a workplace disciplinary policy, which result in disputed decisions.

While there are many possible formulations, the steps for a procedurally fair disciplinary process may be set out as follows:

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

1. Define the complaint or grievance

A grievance or complaint may relate to a conduct or capacity issue. If it is a conduct issue, then following steps in a disciplinary process may be reasonable. On the other hand, if it relates to capacity, it may be due to a lack of training or a temporary health issue, in which case a disciplinary process may be the wrong response to the issue. However, in cases where underperformance is ongoing, it may become a capacity issue that requires disciplinary action.

While in many cases it may be clear what the issue is and why it may breach a code of conduct, workplace policy or pose a threat to health or safety, in other cases, it may not be so clear. Without the grievance or complaint being defined, it may be difficult to both investigate as well as allow an opportunity for the employee who is the subject of it to respond. This can cause procedural unfairness. As such, a complaint or grievance may require some initial follow-up questions or clarification.

In general, a complaint or grievance should outline the relevant times, places and circumstances of the allegations as well as at least raise a conduct or capacity issue (ie, a breach of code of conduct or work health and safety standard, etc). The nature of the allegation will inform the employer as to how to manage the complaint. For example, depending on the gravity of the complaint or grievance, it may be appropriate to suspend an employee from work while further steps in the disciplinary process are followed.

2. Undertake investigations

Workplace investigations may be straightforward or complex. There are times when it may be mandatory under the law to forward the complaint or grievance to the police or other government agency. It is often prudent for a business to obtain urgent legal advice to understand the compliance obligations of its directors or officers under the law.

One critical early decision for most businesses will be whether to conduct the investigation with internal staff, or whether an independent workplace investigator ought to be appointed by the business or organisation. In many cases, there may be no issue with an internal investigation being completed. However, where potential biases or conflicts of interest are evident, there may be no procedurally fair alternative but to appoint an independent investigator.

3. Allow an opportunity to respond

Under section 387(c) of the Fair Work Act 2009 (Cth), failure to give an employee a chance to respond to complaint or grievance that may see them lose their job is taken into account in determining if a dismissal was harsh, unjust or unreasonable. The law states:

387 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
  1. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and…

Business realities, modern awards, enterprise agreements, contractual terms and workplace policies may all influence at which stage in the disciplinary process an employee is first given an opportunity to respond. The notion that employers should give employees an opportunity to respond to potential disciplinary action has been long established. With respect to a similar provision replaced by section 387 of Fair Work Act 2009 (Cth), it was said by Moore J in Wadley v YMCA Canberra [1996] IRCA 568:

“In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of the allegations concerning the employee’s conduct as as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”

As is clear from the above statement, failure to provide a genuine opportunity to respond may cause a successful claim against a business or organisation. The opportunity to respond may take a number of forms, such through a meeting, interview, or request for written responses to allegations, findings or disciplinary decisions.

4. Make findings about the issues

An investigator, who may also be the decision-maker, must make findings based on the information or evidence obtained through the investigation. Although a business is not bound by the rules of evidence, if there is a dispute about any steps in the disciplinary process or the outcome of it, then the rules of evidence may be considered by a court or tribunal.

It is not uncommon for their to be inconsistencies between a complainant and respondent, as well as inamongst witnesses. The standard of proof to be applied to findings is the ‘balance of probabilities’. It was explained in the High Court case of Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 that when the law the proof of any fact, it requires “an actual persuasion of its occurrence or existence… It cannot be found as a result of a mere mechanical comparison of probabilities”. The judgment goes on to explain what may reasonably satisfy a decision maker on the balance of probabilities:

“… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer… In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

As such, in making findings in relation to a grievance or complaint, the following ought to be taken into account:

  • The nature of the allegation (ie, seriousness or triviality);
  • The inherent likelihood or unlikelihood of the allegation; and,
  • The consequences that follow from the finding of fact.

It may be found that the allegation is proved (substantiated) or not proved (unsubstantiated). In some circumstances, an allegation may be partly proved, in which case it is important to clarify what has been accepted or rejected, given it may affect the appropriate disciplinary decision to be made.

5. Decide on disciplinary action

It is common for the decision-maker to be different from the person who conducted the investigation into the complaint or grievance. For that reason, it is important that a decision-maker not just ‘rubber stamp’ the findings or recommendations of the workplace investigator. They ought to reach a decision that is based on the evidence and that takes account of any explanations or answers to the allegations given by the employee who is the subject of the allegations.

There are many different decisions that may result from the consideration of the complaint or grievance:

  • No action, which may be warranted for trivial or unsubstantiated allegations
  • Negotiated agreements, which often occur to avoid disputed decisions
  • Performance improvement plans, for when performance management is appropriate
  • Warnings, which may be verbal or written and form part of the disciplinary record
  • Termination of employment, which may be with or without notice

It is prudent for a decision-maker who is contemplating termination as the appropriate disciplinary decision to allow the employee an opportunity to ‘show cause’ why they ought to not be dismissed. It is not uncommon for employers to draft the show cause notice to require an answer to the allegations made (ie, allow an opportunity to respond) as well as justify why the contemplated disciplinary action (ie, termination) would not be appropriate if the allegation is substantiated. While there are risks of procedural unfairness by such an approach, it may afford an employee a fair opportunity to respond.

In Australia, small businesses may have less onerous requirements with respect to procedural fairness than larger businesses, although they must still show compliance with the Small Business Fair Dismissal Code. Regrettably, not all small businesses comply with the Small Business Fair Dismissal Code, which opens them up to successful unfair dismissal claims.

6. Deal with any disputed decisions

When a disciplinary decision is made that is adverse to an employee’s interests, there is always a risk that they will seek to take action to reverse the decision or seek compensation, no matter how unfounded the claim may be. Responses to complaints and grievances can give rise to many types of claims even before a disciplinary decision is made. Uncharacteristic or unfair procedural decisions taken during steps in the disciplinary process may also give rise to similar issues. The types of claims that may be made by an employee in the midst of, or following, a disciplinary process include:

  • Breach of contract claims (including awards and enterprise agreement contraventions)
  • Discrimination and harassment claims
  • General protections claims (adverse action)
  • Unfair dismissal claims
  • Workplace bullying claims

The reputational, emotional and financial consequences from claims being made against employers, executives and managers can be significant. In order to minimise the risk of successful claims being raised, it is advisable for businesses and organisations to obtain legal advice prior to initiating a disciplinary process or making a disciplinary decision. The limitation periods for certain claims differ depending on the type of action that may be contemplated by the employee.


Anderson Legal provides comprehensive employment law services to businesses, executives, employees and public sector workers. If you are dealing with a disciplinary process and require expert advice or representation, Anderson Legal tailors its services to the needs of each case. This includes:

  • providing advice relating to allegations, grievances, and complaints;
  • advising clients on options relating to disciplinary processes;
  • communicating on behalf of our clients with others, including employers;
  • resolving, where appropriate, grievances and complaints through negotiation;
  • representing clients during workplace investigations and disciplinary processes; and,
  • filing, litigating, and defending claims and applications on behalf of our clients.

This firm places an emphasis on providing clear guidance so that our clients are placed in a real position to make informed decisions about their options and the preferred path forward. Anderson Legal provides clear, transparent disclosure of its legal costs at every stage.

Anderson Legal has the expertise and experience to provide comprehensive employment law services to individuals and businesses. If you need an employment lawyer, there are many reasons why Anderson Legal should be your preferred choice:

  • Having successfully represented litigants in the High Court of Australia, Royal Commissions, Fair Work Commission, and multiple other courts dealing with trials and other hearings, Andrew Anderson, Legal Director, has a demonstrated record of success in complex and difficult cases.
  • Andrew Anderson 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). He is an experienced lawyer who is passionate about resolving employment law issues in the interests of his clients.
  • Prior to operating a law firm, Andrew Anderson 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 straightforward 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.

The potential impact of disciplinary processes on reputations, relationships, and livelihoods makes it essential to have an employment lawyer who is equal to the task. If you are a business operator, executive, employee or public servant dealing with a disciplinary process or potential disciplinary action, contact Anderson Legal.

Limitations on general information

Each legal issue is unique. The information on this page and website cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature for people seeking to learn more about the steps disciplinary processes, particularly as it relates to employers and employees in Australia. Anybody dealing with workplace disciplinary action ought to obtain expert legal advice and guidance as soon as possible.

No content accessible on the website is created to provide specific legal answers or advice. It is designed to provide general information about legal matters and related concepts. It should not be used as, or in substitute of, your own legal advice or other advice as appropriate.

To the extent allowed by law, no warranty, condition, or guarantee is provided in relation to the accuracy or reliability of any information contained on this site. Content may be changed from time to time without notice.

If you are dealing with a disciplinary process and need advice and representation, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to understand their legal rights, obligations, and options.

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