Discipline procedures, termination, and discrimination law
Discipline procedures specify the process to follow in the event of a dispute between the employee and the employer about the employee’s conduct or performance. Discipline procedures attempt to protect the rights of both parties while ensuring that any grievances are aired and solutions put in place.
Where a modern award or enterprise agreement is in place that has an applicable discipline or grievance procedure, the employer should follow the discipline or grievance procedure prior to terminating a person’s employment. Otherwise a procedure like the example set out below should be used. It is important to keep in mind that many disputes can be prevented by the development of clear employment policies, including a full and up-to-date job description and employment contract if appropriate. Despite these precautions, disputes can develop in any work situation for a wide variety of reasons.
It is not always necessary to proceed through the whole process if the issue is resolved at any stage. Conversely, you may shorten the process if a person is to be dismissed quickly (called a summary dismissal), for example, for reasons of serious misconduct. However, the process should be logical and clear.
- First Warning – Verbal – An employee should be told as soon as possible of any complaint concerning his/her conduct or performance. Complaints must be specific and be referable to the job description, contract of employment, relevant policies or the terms of the applicable industrial instrument. Complaints such as: “She can’t get along with us” or “He hasn’t got commitment” are not specific.
- Prior to the commencement of any formal disciplinary meeting with the employee, the employee should be provided with the opportunity to bring a support person to the meeting. A support person may be an union representative, friend or family member or a fellow work colleague.
- After verification of the facts from the employee and employer (or supervisor), the relevant supervisor, manager or staff coordinator should discuss the complaint with the employee. An outline as to how the employee could improve his/her conduct or performance within a suitable period of time should be provided. The employee may be entitled to have his/her nominated representative attend this discussion if desired.
- A record of these discussions and any agreements or decisions reached in the meeting should be written down and signed by the employee for future reference if necessary.
- The matter should be followed up at the end of the nominated period of time, even if the problem does not continue.
- Second Warning – Written – If the problem continues, the employee should be given written notice of the complaints against him/her. The relevant supervisor, manager or staff coordinator should discuss the complaints with the employee. The supervisor should inform the employee of the specific complaints. The employee should be given a right of reply and be able to discuss the complaints made against him/her. The supervisor should refer to the outline provided in Step 1. Any failures to satisfy the outline should be noted and discussed. The employee is entitled to be represented at this meeting by a person of his/her choice.
- The aim of the meeting is to resolve the dispute. If this is not possible, the two parties should negotiate how the situation may be improved. For example, a further outline may be provided or both the employee and the supervisor might undertake to do certain things or change certain things within a trial period. A review would take place after this trial period. Where a time for review is set, it should be adhered to, even if the problem does not continue.
- In appropriate circumstances, the matter may need to be referred to the management committee.
- Final Warning – Written – If the problem still persists, a special meeting of the management committee should be called and the employee should be given written notice to attend (including details of the alleged complaints). The employee has the right of reply and should be able to discuss the complaints made against him/her and any other relevant circumstances. The employee is entitled to have representatives of his/her choice attend the meeting.
- Previous warnings and outlines about how to rectify deficiencies in conduct or performance should be referred to; in particular, any failures to satisfy these outlines within the set time periods should be noted and discussed.
- The matter should be fully discussed and further action may be considered. It is up to the two parties to negotiate what this action might be, but in any case the employee is given written notice being a “Final Written Warning”.
- In the event that time periods are set, they should be adhered to, even if the problem does not continue.
- Show cause letter – If the problem persists, a “show cause” letter may be addressed to the employee. This letter should detail the history of the conduct or performance matters and the allegations and findings against the employee. It should provide the employee with an opportunity to provide any explanation or excuse or otherwise show just cause as to why their employment should not be terminated. The employee is usually then given a time period within which to respond.
- Termination of Employment – If the problem persists, or the response to the show cause letter is unsatisfactory, another special meeting of the management committee should be called and a decision made about whether employment of the employee should continue. The committee might wish to consider alternatives such as a final formal Dispute Resolution Meeting as a further attempt to resolve the problem. Alternatively, the management committee may, at this point, decide upon termination of employment.
- If dismissed, the employee should be provided with written notice of termination and given notice or a payment in lieu of notice.
The area of industrial relations continues to change rapidly. Therefore organisations are encouraged to regularly check their legal position carefully in all employment matters, and particularly where termination of employment is contemplated.
Termination of employment
The NES require employees to be provided with a specified minimum period of notice upon termination of employment. A modern award may also specify the period of notice which is required to be provided or the modern award may merely rely on the NES provisions. If the period of notice required to be given by either the employee or employer is to be different to that set out in legislation and/or an applicable modern award or enterprise agreement, it should be written into the employment contract (but employers cannot make the notice they are required to give to employees any less than that provided for in legislation or in an applicable award or workplace agreement).
If an employer does not want the employee to remain employed during the notice period they may ask the employee to leave immediately, but must make a payment “in lieu” of the amount the employee would have earned, if he/she had worked during the notice period.
An employer has a right, both at common law and in accordance with the Act, to summarily (without notice) dismiss an employee for serious misconduct. There is no fixed rule of law which outlines the degree of misconduct which justifies summary dismissal, although the Fair Work Regulations 2009 relevantly define serious misconduct as wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment and sets out some circumstances in which this would be the case. The Code of Conduct formulated by your organisation should provide guidelines as to grounds for summary dismissal. Employment contracts may also specify grounds for summary dismissal.
A National system employee who believes they have been unfairly dismissed from employment (having completed at least 6 months continuous service) by an employer may apply to Fair Work Australia for relief within 14 days after the dismissal, or such extended period as the Fair Work Australia may permit. Similarly, a State system employee may apply to State industrial relations commissions.
When Fair Work Australia considers whether a dismissal is unfair by way of being harsh, unjust or unreasonable, Fair Work Australia will take into account a range of factors including:
- if there’s a valid reason for the dismissal relating to the employee’s conduct or capacity;
- if the employee is notified of the reason and given an opportunity to respond;
- any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to dismissal;
- if the dismissal relates to unsatisfactory performance, whether the employee is warned about this unsatisfactory performance before the dismissal;
- the impact of the size of the employer’s enterprise on the dismissal process, including the absence of dedicated human resource management specialists or expertise; and
- any other factors Fair Work Australia considers relevant.
Employees of a small business are excluded from applying for unfair dismissal within the first 12 months of their employment. A small business employer is defined as someone who engages less than 15 employees (as a head count), irrespective of the hours worked and can include casual employee employed on a regular and systematic basis, employees of an associated entities and the employee being dismissed.
Policies and Laws about Discrimination
Federal and State legislation requires employers to act in non-discriminatory ways. (It is important to note that “work” is widely defined to include voluntary, part or full-time, and contract employment). Equal Employment Opportunity (EEO) principles ensure that everyone has an equal chance to seek and obtain employment and promotion. EEO also underpins selection procedures. Selection must be based on merit – applicants must be assessed only on their relative ability to effectively do a job.
One of the main purposes of EEO is to remove discrimination from the work environment. Discrimination in employment happens when a person with a particular characteristic or attribute is treated less favourably than another without that characteristic or attribute would be treated in similar circumstances.
Equal Employment Opportunity or affirmative action legislation is essentially proactive and designed to prevent incidents of discrimination. This legislation places the responsibility to ensure that discrimination does not occur squarely upon management of organisations which employ people.
Four EEO target groups are identified in Federal and State legislation. These are:
- Aboriginal and Torres Strait Islander people
- People with a disability
- Migrants whose first language is not English and their children
EEO policies and practices are particularly aimed at eliminating unjustifiable and unlawful discrimination in employment for people in these groups. However, EEO has benefits for all people in an organisation (and for the people served by an organisation) as it ensures that staff are selected and/or promoted on merit.
The Equal Opportunity for Women in the Workplace Act 1999, requires all employers throughout Australia with more than 100 staff to develop programs for women designed to ensure that action is taken to eliminate discrimination against women and that measures are taken to contribute to equal opportunity for women in relation to employment matters. These employers must provide reports on their programs and actions to the Equal Opportunity for Women in the Workplace Agency.
Anti-discrimination legislation enables a complaint to be lodged with a relevant body after an act of discrimination has occurred. The legislation has been in effect in Australia since the mid 1970s. The Queensland Anti-Discrimination Act 1992 prohibits discrimination in a range of areas, including employment, on the basis of any of the following attributes:
- Relationship status
- Parental status
- Gender identity
- Religious belief or activity
- Political belief or activity
- Trade union activity
- Lawful sexual activity
- Family responsibilities
- Association with, or relation to a person identified on the basis of any of the above attributes
The Federal Government has also enacted anti-discrimination legislation, including the AustralianÂ Human Rights Commission Act 1986, Racial Discrimination Act 1975, Sex Discrimination Act 1984, Age Discrimination Act 2004 and the Disability Discrimination Act 1992. The Federal legislation is in similar terms to the Queensland Anti-Discrimination Act 1991.
Human Rights Act 2019
The Human Rights Act 2019 (the Act) protects the human rights of every person in Queensland when they interact with the Queensland Government. As public service employees, we have to think about the impact of our decisions and actions on the human rights of Queenslanders whenever we create new laws, apply policies, and deliver services.