Who can use this policy
This Performance and Misconduct Policy can be used by all employers.
Commentary
The primary purpose of a performance management or misconduct process is to:
- correct and/or improve the standard of performance or conduct of an employee where appropriate or necessary; and
- provide an employee with an opportunity to correct unacceptable performance or conduct (other than in situations where summary dismissal is appropriate).
Disciplinary action by an employer may be necessary in response to unsatisfactory performance or misconduct by an employee. Disciplinary action covers counselling, warnings and termination of employment.
Improperly handled disciplinary action can expose an employer to legal risk. Risks include findings of unfair dismissal, adverse action (such as unlawful termination) and discrimination. A successful claim against an employer can also lead to the imposition of financial penalties by the Fair Work Commission, the reinstatement of an unfairly dismissed employee and damage to the employer’s reputation.
Employers can manage these risks in the following ways:
- the employee should be given an adequate opportunity to respond to any concerns or allegations;
- the employee should be given advance notice of any disciplinary meetings/interviews;
- the employee should be able to have a support person at any meeting if they wish;
- the employee’s response to the concerns or allegations should be considered and any further enquiries or investigations should occur promptly; and
- whatever the form of the disciplinary action (eg written warning, dismissal), the employer should ensure that the reason(s) is/are valid. That is, the reason(s) should be sound and defensible. The reason(s) should not include any considerations that constitute unlawful discrimination.
Small businesses
Employers with fewer than 15 employees are also able to utilise the Small Business Fair Dismissal Code when terminating an employee’s employment. However, the Performance and Misconduct Policy offers more comprehensive guidance and can be used by both small and large employers.
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