Disciplinary Meetings for Employers Avoiding Unfair Dismissal Claims

Introduction

Conducting disciplinary meetings properly protects your business from costly unfair dismissal claims. Poor process, even with valid reasons for discipline, can result in successful claims against you. Here's how to get it right.

Why Process Matters More Than You Think

The Fair Work Commission doesn't just look at whether you had valid reasons for disciplinary action - they scrutinise your process. Even if an employee deserved dismissal, procedural failures can make the dismissal unfair and costly.

Recent cases show the Commission is increasingly focused on whether employers followed proper procedures, gave employees genuine opportunities to respond, and applied proportionate penalties.

Before the Meeting Essential Steps

Investigate first Don't rush into disciplinary meetings. Gather facts, interview witnesses, and review relevant documents. Document your investigation process.

Check your policies Follow your own disciplinary procedures. If you don't have clear policies, you're making this harder for yourself. Ensure any process you follow is consistent with what you've done for similar issues before.

Prepare the documentation Write a clear letter outlining:

• Specific allegations or concerns
• Evidence you have
• Meeting date, time, and location
• Their right to bring a support person
• Potential consequences

Give proper notice Provide at least 24-48 hours' notice. Rushing the process rarely helps and can undermine your position if challenged.

Employee Rights You Must Respect

Support person Employees can bring a colleague, union rep, friend, or family member. The support person can't speak for the employee or interrupt, but they can provide moral support and take notes. Don't unreasonably refuse this request.

Opportunity to respond This must be genuine, not a box-ticking exercise. Listen to their explanations, consider new information they provide, and don't make decisions before hearing their response.

Fair process Follow your own procedures, treat similar cases consistently, and ensure the penalty fits the misconduct.

During the Meeting

Start clearly Explain the purpose, outline the allegations, and present your evidence. Make it clear what specific behaviour or performance issues you're addressing.

Listen properly Give the employee time to respond to each allegation. Don't interrupt or appear to have already made up your mind. Take notes of their responses.

Ask questions Clarify anything unclear in their response. Give them opportunities to explain circumstances or provide context.

Don't decide immediately Unless it's a clear-cut case, tell them you'll consider their response and get back to them. This shows you've genuinely considered their input.

Common Traps That Lead to Unfair Dismissal Claims

Inadequate investigation Jumping to conclusions without proper fact-finding often backfires when employees provide explanations you hadn't considered.

Inconsistent treatment If you've handled similar issues differently with other employees, expect questions about why. Document your reasoning for any different approaches.

Disproportionate penalties First-time minor misconduct rarely justifies immediate termination. Progressive discipline (warnings before dismissal) shows reasonableness.

Poor documentation If it's not written down, it's hard to prove it happened. Keep records of incidents, previous warnings, and improvement discussions.

Procedural shortcuts Skipping steps in your own disciplinary policy, giving inadequate notice, or denying support persons can make valid dismissals unfair.

After the Meeting

Make your decision carefully Consider all the information, including the employee's response. Document your reasoning for whatever decision you make.

Communicate clearly Put your decision in writing, explaining the reasons and any next steps (warnings, improvement plans, termination).

Follow through consistently If you've imposed conditions or improvement plans, monitor compliance and provide promised support.

When Dismissal Might Be Justified

Serious misconduct Theft, violence, serious safety breaches, or significant policy violations can justify immediate termination, but you still need proper process.

Poor performance Only after giving clear expectations, reasonable time to improve, appropriate support, and warnings about consequences.

Repeated minor issues Where you've followed progressive discipline and the employee hasn't improved despite clear warnings.

The Small Business Reality

If you employ fewer than 15 people, you have some additional protections under the Small Business Fair Dismissal Code. However, you still need to follow basic fairness principles and can't ignore serious procedural failures.

The Code provides a checklist approach, but it's not a free pass to dismiss employees without proper process.

Documentation That Protects You

Keep records of:

• The original incident or performance concerns
• Your investigation process and findings
• The disciplinary meeting (who attended, what was discussed)
• The employee's response and any new information provided
• Your decision-making process and reasons
• Any warnings or improvement plans given

Good documentation is your best defence if facing an unfair dismissal claim.

When to Get Legal Advice

Consider professional advice before:

• Dismissing any employee
• Handling complex misconduct allegations
• Dealing with discrimination or harassment complaints
• Managing employees with disability or other protected attributes
• Situations involving senior employees or complex employment contracts

The cost of advice upfront is usually much less than dealing with unfair dismissal claims later.

Red Flags That Increase Risk

Be extra careful if:

• The employee has raised complaints about discrimination or harassment
• They've made workers' compensation claims
• They're pregnant or on parental leave
• They've recently joined a union
• They've raised concerns about workplace safety or legal compliance

These situations don't prevent disciplinary action, but they require more careful handling and documentation.

The Bottom Line

Proper disciplinary processes protect your business from costly claims while helping you address legitimate workplace issues. The key is following fair procedures, documenting everything, and treating employees consistently.

Most unfair dismissal claims succeed because of poor process, not because employers lacked valid reasons for dismissal. Getting the process right from the start saves time, money, and stress later.

When in doubt, slow down and get advice. Rushing disciplinary processes rarely improves outcomes and often creates bigger problems.

Need Expert Guidance

Salbridge Lawyers helps employers navigate disciplinary processes and avoid costly unfair dismissal claims.

Contact us at info@salbridgelawyers.com.au or call 02 9033 0495.

This article provides general information only. Every situation is different - seek specific advice for your circumstances.