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Taking disciplinary action against employees is risky for many employers, not because it is a high risk undertaking, but because too many employers get it wrong because they do not take advice first.

Taking disciplinary action that does not result in a personal grievance or at least not resulting in a successful personal grievance is all about the process.

Too many employers undertake a disciplinary process after which they are quite justified to discipline the employee, or even dismiss them, but because the employer has not followed the correct disciplinary process, they leave themselves exposed to a successful personal grievance.

The Employment Relations Act imposes a duty on both the employee and the employer to act in good faith.

Lawyer Discussion

What that means in relation to the disciplinary process is that you must undertake a Fair and Transparent Process.

This involves advising the employee that you are undertaking an investigation,  explaining the process of that investigation and the timelines that you estimate will be involved.

In most instances this will involve a fair and thorough investigation on what exactly happened.  In more complicated matters this could involve interviewing multiple witnesses, gathering physical evidence and presenting it to the employee.

Before you can present it to the employee or before you can interview the employee you must give them written notice of your intention to hold such a meeting, the purpose of the meeting and what the outcome could be in the process in the event that the alleged behaviour was proven.

You must advise them in that letter that they are entitled to bring a support person to the disciplinary meeting, and they can take legal advice and bring a legal advisor if they choose to.

If after conducting an interview of the employee who is accused of breaching any duties to you should they introduce some new information that needs to be further investigated, you must do so first and then present that new information to the employee and ask for any further comment.

Once you have completed the investigation you can then make a decision and advise the employee and/or their legal advisor.

If the allegation is serious, it is sometimes advisable to engage the services of an Independent Workplace Investigator. It is important this person is qualified to undertake the task and there are a number of people now that specialise in these types of investigations.

Using an Independent Workplace Investigator avoids the allegation that the employer was biased in undertaking the investigation themselves.

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As this illustrates it is important that you get the process right and if you are unsure, we strongly recommend you take advice from your legal advisor at the commencement of the process before you undertake it so at least you have some guidance to navigate through it correctly.