In an ideal world employing staff would be trouble free, they would all perform beyond your expectations, be five minutes early for work every day, be completely trustworthy and add real value to your business. While most of your staff will be like this, there will in reality be those that don’t. Any employee who is not contributing to your company and its goals through poor performance or unacceptable behaviour will need to be managed through a performance process and this may mean that you need to formally instigate a disciplinary process.

The tenant of “good faith” lies at the very heart of the Employment Relations Act 2000. In terms of disciplining a staff member, this means that you need to be procedurally fair and behave as any reasonable employer could be expected to behave. While there is no actual procedure laid down in law, there is a preferred procedure that you should adopt to ensure that you comply with the requirements of the legislation. The Act demands that you behave as any reasonable employer would do in the circumstances and that any action you might take is justified. In simple terms, the punishment fits the crime.

Each issue should be dealt with on its own merits and so what is procedurally fair may differ in each case. However over the years courts have determined what is considered fair. An employee must:

Be aware of the expectations of the position they hold. They must have a job description that fairly outlines the parameters of their job and the level of performance expected.

Have been previously informed of any issues or failings.

Have been given the opportunity to improve over a fair time frame and been given any additional training or support they may need to do this.

Have been given previous clear warnings that the shortcomings must not continue and that their continued employment is in jeopardy if the improvement needed doesn’t happen.

As an employer you should be able to improve performance or behaviour through informal performance management meetings. You should speak to the employee, explain what you see as being the issues and ask the employee whether they understand your concerns or perhaps have more information to add. Remember to keep an open mind, things are not always what they seem. Explain and if necessary demonstrate the level of performance/behaviour that you need and work with the employee to help them reach this level. You may need a number of meetings like this to achieve your objective but this approach is usually successful. Remember that even though these are informal meetings you should keep a note of them for future reference.

However, if you don’t get the desired result, or the conduct continues then you may need to continue into a more formal disciplinary process. Remember the employee:

Must be given a fair hearing.

Is given the right to representation and time to arrange this support prior to any disciplinary meeting.

Has the opportunity to respond, question your assertion and ask any questions.

Is given training or support and assistance and the time to improve.

Has right of appeal

Ensuring that any disciplinary process you follow is procedurally fair will protect you from a personal grievance claim being filed against you but if you do have to get involved in mediation or court it will guard against you being accused of firing the person without due process.

Disciplinary procedure

The disciplinary procedure moves you through increasing levels of a process aimed at improving the employee’s performance or conduct, through discussion, explanation and training/support but which may result in termination.

If less formal attempts to improve the performance or behaviour have failed to achieve the desired result, the steps of the disciplinary procedure should be followed. The usual and accepted steps of this process are:

• Oral warning
• First written warning
• Final written warning
• Termination

It is not always necessary to follow this procedure precisely. You may leap into the process at any stage, if the misconduct is severe enough to warrant it. An employee may be terminated without notice, “summary dismissal” for actions that constitute serious misconduct.

There is no definitive list that determines when disciplinary action is necessary, however you may feel that the process is appropriate where:

• There is continuing poor performance as matched against their job description.
• There is excessive absenteeism or tardiness.
• An employee breaches your company policies and guidelines.
• The behaviour or conduct meets the grounds for serious misconduct as outlined in the employment agreement or your company policies.

Remember:

Actions that are deemed serious misconduct by your company should be noted in the employment agreement or company policies.

STEPS TO DISCIPLINARY ACTION, INVESTIGATION OR MEETING

(Oral, Written and Final Written Warnings and Dismissals)

Whether or not you carry out further inquiries will depend on the nature of your concern. If the allegation of misconduct relates to potentially serious issues such as harassment, misappropriation, assault or drug/alcohol use then your first step should be to find out whether the concern has any real basis. This may take the form of an interview with the employee concerned, with other witnesses or by taking note or account of other information or evidence. If you believe it is necessary to investigate an allegation further then the employee should be informed of your concerns as soon as possible and asked for comment. The employee must also be told that you intend to investigate the matter further and that the result of this investigation may be disciplinary action. It is vital that you carry the investigation out as soon as possible for benefit of all concerned.

In cases where serious misconduct may be concerned you may wish to remove the employee from your site. This is known as suspension. You may suspend an employee only if your employment agreement allows and unless expressed otherwise this should be on pay. The length of the suspension should also be limited.

An employee should only be suspended if:

• The allegation directly affects the employee’s ability to carry out their duties e.g. unauthorised possession of company property, gross misconduct / negligence or violent behaviour.
• Doing so does not predetermine the outcome of the investigation.
• It is necessary for a proper investigation or further investigation.
• It does not prejudice the employee’s ability to prepare themselves for that interview.

Inform the employee:

1. That suspension may be necessary to allow a full investigation .
2. That they may take advice from representation before proceeding.
3. About the allegations and the possibility of formal disciplinary action or dismissal.
4. That you will consider suspension on pay pending outcome of investigation.
5. Advise the employee that suspension is not disciplinary action but is appropriate while investigation takes place

Full notes should be taken and kept of the interview at which the employee is informed of suspension. Record who was present, what was said and who said it plus date, time and location. It is prudent to have a company witness present.

Remember:

Employee remains on full pay while suspended. Suspension without good cause is a breach of contract. Any investigation should be carried out as quickly as possible

The Disciplinary Meeting

Before meeting with the employee you must ensure that you fairly inform the employee of the reason, nature and potential outcome of the meeting.

You should:

• Inform the employee about your concerns, giving detail of the particular issue.
• This should include copies of any evidence that you may have regarding the issue.
• Tell them that you wish to have a formal meeting to discuss these issues and offer a time, date and venue for the meeting. Arrange a private room for the meeting.
• Let the employee know that they will have an opportunity to offer an explanation at the meeting.
• Make sure the employee is aware that they are entitled to have a support person at the meeting. This support person can be who ever they wish: friend, relative, colleague, union or legal representative.
• Explain what may happen if, having listened to the employee’s explanation, you do not accept it. This means letting the employee know that you may consider some form of disciplinary action up to and including termination of employment.
• Confirm the details of the meeting in writing.

Remember: Although the employee must be offered representation, they have the right to refuse it. If an employee comes to the meeting without a support person, make sure they understand that this is their right and make a note that you have done this. However, you can continue with the meeting.

You should also have a company witness present.

During the meeting:

1. You should conduct the interview with a representative of the company as a witness in a private meeting room.
2. All facts, allegations and issues must be put to the employee.
3. Employee should be told what may happen if you don’t accept their explanation
4. Employee must be given a real chance to explain or justify their actions.
5. Full notes should be taken during the interview. They should note who was present, what was said and who said it, the date, time and location. Notes must contain the employee’s responses/explanation to the allegations.
6. Any suggestion that you had made up your mind before the interview, could have serious consequences if a personal grievance is taken. IT IS GOOD MANAGEMENT TO GIVE EVERY EMPLOYEE A FAIR HEARING.
7. The employee should be informed that you will retire to consider the outcome of the meeting and that a further meeting will be arranged with the employee when a decision on how to proceed has been made. This meeting should be as soon as possible but not with too much haste. You need to be seen to giving full consideration to the employees’ explanations.

After the meeting:

If, once you have given objective consideration of the employee’s explanation, you decide that a warning is appropriate, you must tell the employee. This should be done at a second meeting. Provide the employee with a summary of the discussion that took place in the disciplinary meeting. Tell the employee that you have decided to give them a warning, explain what level of warning this will be and why. Let the employee know what will happen if the conduct is repeated or the performance/behaviour continues including that their continued employment could be in jeopardy. Set a time frame for any improvement. You should also note any training or support that you have agreed to provide.

Write the warning letter. Even if you choose to give an oral warning this should be confirmed in writing.

Remember:

Which ever action you choose, take care to ensure that the action is “justified”. The action you take should be what any reasonable employer would take given all the circumstances. Circumstances you should take into account could include:

• Previous conduct
• Length of service
• The nature of the incident or lack of performance
• Any lack of training/support
• Personal circumstances
• The employee’s attitude

A warning should expire after 12 months.

There are some more important and positive reasons for following the disciplinary procedure as set down in the Employment Relations Act 2000:

• You may be able to turn the employee around and gain a well functioning employee.
• You may find out what is wrong with your work rules and polices which can be changed to make the work environment for your employees more effective.
• By evaluating the employee and providing him or her with training and assistance you may find out what is wrong with your selection process.

By allowing an employee a chance to change their performance before you discipline you demonstrate to other employees that you are fair and willing to give employees a chance.