How do I Discipline or Dismiss Someone Fairly without Ending up in Court?
Assess Disciplinary and Dismissal Procedures
What are Disciplinary and Dismissal Procedures?
These are the formal procedures put in place in an organisation to control and manage non-performance or inappropriate behaviour in the workplace.
Ideally, before any disciplinary action is considered, the employee has received regular, informal coaching from the employer in relation to any performance or behavioural difficulties. The purpose of informal coaching being, to provide the necessary opportunities and support to enable the employee to remedy any performance/behavioural deficits, and hopefully avert the need for future formal intervention.
What Disciplinary Procedures do I Need?
Disciplinary procedures should include a three-tier progressive warning process:
- First Warning - Often occurs at a stage when informal coaching has failed to achieve the desired performance/behaviour.
- Final Warning - Generally issued Generally, a final warning is issued in the following types of situations:
- The employee has failed to heed the first warning (not limited to repetition of the same behaviour).
- Serious misconduct, where instant dismissal would be too harsh, yet the progressive warning procedure would not convey the seriousness of the offence.
- A further breach of any employment rule while the final warning is in force, will render the employee liable to dismissal on notice.
- Permanent Warning - This warning remains in force for the duration of employment.
Who Carries Out Disciplinary Action?
Where disciplinary action is decided (i.e. warning or dismissal) the employee’s direct supervisor or manager should conduct the procedure and sign all necessary documentation.
When is Dismissal Appropriate?
Generally, the decision to dismiss an employee occurs in situations where:
- The matter is so serious that that dismissal needs to be applied without formal warnings being given first;or
- Both informal approaches, and the formal warning process have failed to correct the problem.
Depending on the circumstances, an employer may choose summary dismissal, dismissal with notice, or dismissal with pay in lieu of notice.
IMPORTANT- Seek professional help if you are unsure of the process.
INSTANT DISMISSAL IS NOT RECOMMENDED!
It is often very tempting to instantly dismiss an employee, particularly in situations where perhaps tempers have become frayed, or perhaps you have caught the employee red-handed at some serious misconduct.
Often instant dismissal is applied in the heat of the moment and without serious thought about the likely repercussions. In these situations, often the employee is not given an opportunity to explain or seek representation.
Instant dismissal is very likely to backfire against the employer. The employee could end up with substantial compensation as well as job reinstatement - all based on the process applied and regardless of being guilty of the offence. It is not worth it.
How do I avoid Unjustified Dismissal Claims?
Any dismissal may result in a valid personal grievance for unjustifiable dismissal if:
- There is no good reason for the dismissal, or
- The dismissal has been carried out in an unfair way.
- The employer has acted unreasonably or unfairly towards the employee
- The employer has departed from agreed dismissal procedures
- The employer has failed to ensure natural justice has occurred
- Evidence is considered inadequate to satisfy the ‘balance of probabilities’ test.
In circumstances where an employee takes a case of unjustified dismissal against the employer, the court requires that the employer prove their case. The employer must prove their innocence of the allegations brought against them.
The standard of proof that an employer must attain is the civil standard of ‘balance of probabilities’.
Get in Touch with Jump
If you need help, or you answered no or unsure to any of the questions in the assessment tool, then Jump Business Solutions can help you. Phone us on +64 6 754 8987 or +64 27 450 5271 or email firstname.lastname@example.org and Jump will come to you, discover your needs, and develop a solution that will create real, long-term and positive change for you and your business.
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