Disciplining employees: When firing is too harsh but a warning is not enough

Introduction

The Fair Work Commission deal with many Unfair Dismissal applications where the employee's conduct does not warrant dismissal.

It is important to note that there are discipline methods in between warnings and dismissal, and potentially options that "fit the crime" much better than the traditional options.

Misconduct v Underperformance

Misconduct is unacceptable behaviour by an employee in the workplace. Misconduct does not necessarily need to relate to their work performance but must be connected to their employment, and can be deliberate or by omission.

On the other hand, underperformance is the unsatisfactory performance of the employee's duties and always relates to the capacity of the employee to perform their work tasks.

Whether the relevant situation is one of misconduct or under performance will dictate which option is appropriate.

Alternative Disciplining Options

Here are some viable alternatives to consider next time you are disciplining an employee:

1. Unpaid suspensions (if expressly provided for in the employee's contract of employment)
2. Withholding pay increases or discretionary bonuses
3. Exclusion from workplace social activities for a defined period
4. Either temporary or permanent demotion (if role flexibility is provided for in their contract of employment)
5. Close supervision and monitoring
6. Counselling or refreshed training or
7. Mutual separation (offering a separation package to the employee on a confidential basis).

And of course, the usual options of verbal warnings, written warnings, performance management and termination are still viable options, depending on the circumstances.

Disciplining Generally

Prior to any disciplinary action being taken, the employer must properly investigate the misconduct.

For the above options to be effective, such actions must not breach the employee's employment contract or entitlements under any Award or industrial agreement. They should also be contained in workplace policies. It is also important to allow procedural fairness and to allow the employee to respond to all allegations of misconduct or underperformance.

Be Proactive: Build a Vibrant Workplace Culture

Discipline isn't a matter of dominance and punishment. It's about making the work environment safe and pleasant for everyone. Building a vibrant workplace culture will help you achieve this.

Another proactive step in building a vibrant workplace culture is conducting regular employee reviews. Reviews are a proactive approach to employee discipline. They can be worked into just about any discipline process. They are also useful if you want to help build the employee up and encourage (through coaching and training) better performance or behaviour.

What Next?

If your employee engages in misconduct and you are not sure how to discipline them effectively, at Sharrock Pitman Legal we can advise you on the relevant conduct, your legal position and walk alongside you to support you during challenging times.

Joining the Sharrock Pitman Legal community also provides an extensive range of FREE Benefits to our business customers.

If you require assistance, please give us a call on 1300 205 506 or send an email to sp@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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