Kerri Fredericks Principal Lawyer in Anderson Fredericks Turner. Kerri regularly assists clients in relation to all forms of employment law including disciplinary meetings.
Kerri Fredericks – Principal Lawyer
27 May 2019
Preparation, Attendance & Consequences
If you are facing a disciplinary meeting in your workplace, it can be difficult to know what to expect. A disciplinary meeting can result in a number of outcomes, including immediate dismissal.
Today I am going to speak about some of the rights and options executives or employees should consider if they are notified or are directed to attend a disciplinary meeting. First, I’m going to go through planning for a disciplinary meeting, then handling things during the meeting and finally some issues that may follow the meeting. I’ll also address some of the rights employees have when confronted with attending a disciplinary meeting.
In going through these matters, I will deal with some of the practical choices people can face. While I hope this all may be helpful to people interested in knowing more about disciplinary meetings, it is not intended to be and is certainly no substitute for legal advice. If you need an employment lawyer for a disciplinary meeting, our firm offers a free case assessment to see if we may be able to help in your case.
Planning for a Disciplinary Meeting
At the most fundamental level, if you are asked to attend a disciplinary meeting, there is a real prospect that disciplinary action may be being taken against you. So to get right to it, if you are facing that situation there are several questions you should immediately ask yourself.
First, ask yourself if you understand what you are facing. Do you know what the issue or issues are that are going to be raised? Quite obviously, if you have no notice of the issue, it is likely going to be hard to consider whether you need to gather any additional information to support any explanation you may wish to give. Sometimes prior to a disciplinary meeting an employer will issue an employee with a show cause letter, which sets out the issues and possible consequences being considered.
Second, think about whether your workplace has any policies or procedures that cover a disciplinary process. In many cases, small businesses will have no formal procedures as such. However, many larger or more established businesses or organisations will have written policies that outline what should occur if such an issue arises. Sometimes, these issues will also be guided by relevant industrial awards or employment contracts. So you should think about what rules may be relevant to the specific situation beyond what natural justice or procedural fairness may ultimately require.
Third, you need to think about your options. So, options may be broken down into two categories. One being whether you choose to participate in the meeting and how that will happen. For instance, do you need or want a support person? Who can be or should your support person be? That is the first category. Sometimes, it is necessary to engage with an employer or manager to agree such matters before a meeting takes place. The second category are the options you have in responding to any allegations put to you – what does your contract or the law say about the issue? There may be a number of ways that you can respond to the allegations and it is worth thinking about the approach you may take.
Fourth – taking into account all of the above – how do you propose to handle the meeting? Can I say, I have people who may have panicked when confronted with attending a disciplinary meeting and lie during it even though they have a perfectly sound explanation for everything. Sometimes the way the meeting is handled can become a bigger problem than the original concern. So, in truth, thinking through the best strategy for the meeting is very important. In some cases, getting your response right can be the difference between keeping your job or not.
Employee Rights for Disciplinary Meetings
Executives and employees do have certain ‘rights’ when attending a disciplinary meeting. Essentially, employers or managers should:
ensure the meeting is conducted fairly;
outline the purpose of the meeting and the possible outcomes that may follow it;
take into consideration any explanations of the employee; and
ensure that there is a proper record kept of the meeting and any agreed outcomes.
So I might just deal with each of those issues in some more depth.
While I don’t have a formula to provide as to what will constitute fairness in all cases, there are some general considerations that will often be relevant. Giving fair notice of the meeting and its purpose allows an employee to properly prepare. Offering a support person may assist the employee to appropriately engage during the meeting, particularly if there are obvious power imbalances. Of course, there may be good reason why, in a particular case, such considerations may not be appropriate.
Ensuring an employee understands the purpose of the meeting and the possible outcomes that may follow is important. A practical way that this can be achieved is if there is a meeting agenda or a summary of what will be addressed, so the parameters are well defined. Our system of justice really frowns upon situations where important decisions may be made against somebody and they are not put in a position where they are afforded a proper opportunity to respond. When you layer on the general power imbalance between an employer or manager on the one hand, and an employee or worker on the other, problems may arise if the purpose of the meeting is not understood by all concerned.
Considering the explanations and circumstances of someone who is subject to a disciplinary meeting seems fairly obvious. I can tell you it doesn’t always happen. It’s easily avoided. Aside from simply being courteous and respectful, it really is seen as an important part of a fair process.
Lastly, record keeping. If you are an employee, you should anticipate a record being kept. In some cases (it is not legal to do so in all jurisdictions), you may be recorded without your knowledge. In other circumstances, you may be asked if you agree to a recording being made. Some people say, ‘Oh, never let yourself be recorded’. I don’t take that view. Each case needs to be considered in the light of the specific circumstances. However, employees protect themselves by keeping a record independently of any other record created by the employer or manager.
During a Disciplinary Meeting
So if you are called to a disciplinary meeting, there are some things that are important to bear in mind:
Be courteous and respectful always;
Ensure you understand the questions being asked of you;
Respond to the allegations according to the approach you consider is best for your situation;
Take specific note of particular words or statements that seem important; and
Attempt to resolve the concerns of your employer or manager.
All of this may be easier said than done.
One very important thing to point out is how courtesy can be confused with concession. In a stressful situation and perhaps as a response to power imbalances, people can find themselves not putting their ‘best foot forward’. That is, instead of challenging the correctness of an allegation some people can be inclined to agree there may be validity to it, simply to avoid calling out something as being wrong or, worse, a lie. It is really important to do justice to yourself by challenging those issues that you truly disagree with or providing an explanation why it is you may have done or omitted to do something.
In everyday life, we do just sometimes decide not to dispute something because it doesn’t seem worth arguing about. A disciplinary meeting is unlikely to be a good occasion to just go along with something you disagree with simply in the hope your concessions will help you. Seeking to change your version later – seeking to change an answer that ‘hasn’t worked’ – is often met with scepticism. This really goes back to having a planned approach. Sometimes getting a second opinion may be a good idea, including from a lawyer if you are concerned about the legal consequences of anything you may say or do during a disciplinary meeting.
I should just touch upon one other issue and that is in response to the common question – Do I have to answer questions from my boss?
There is a general expectation that employees will work with their employer or manager, including answering relevant and lawful questions. It is part of the obligations owed through the employment relationship and is sometimes written into contracts. It means if you refuse to answer questions, it may not prevent findings being made against you. However, you may not just be dealing with an employment law issue. In cases where the allegations could potentially give rise to criminal offences, you must be very careful to ensure you understand there is a general right to silence in Australia (it is not an unlimited right).
If any allegation could incorporate a criminal offence, if you choose to say something to your employer it may be interpreted as an admission or confession. In some cases, even silence can be considered an admission. An admission or confession may later be used in evidence against you in a criminal proceeding following a disciplinary meeting. It happens. If you find yourself in that situation, or even think it could be a remote possibility, I would stress there is good reason to be seeking urgent advice from an appropriately qualified lawyer.
There are numerous issues that may arise following a disciplinary meeting.
For instance, it may be that it is resolved no action, or at least no formal action is warranted in the circumstances. In one sense, you may think ‘well, that is behind me’. In many cases that may be so, but it is important to bear in mind that even informal discussions may be considered when examining the fairness of any subsequent disciplinary action. So ensuring an accurate record of what was said or done can still be important, even if nothing may ever come of it.
In many instances though, further action may follow the meeting, such as:
an employer suspending the employee from the workplace; or,
It is really important for employers, executives and employees to understand that all of these processes may be subject to challenge. For instance, the Fair Work Act, (for most employees) and the Public Service Act, the Hospital and Health Boards Act, Industrial Relations Act,City of Brisbane Act and the Local Government Act (for public sector workers in Queensland) all provide powers or remedies for people to make or challenge different decisions in the workplace. It is worth noting that many of these remedies have very strict time limitations so delay can often equal forfeiting certain powers and protections. So it can be really important to get early and authoritative legal advice about any disciplinary action you may face.
Sometimes, people are given no notice, or very little notice of such a meeting. In other cases, they are scheduled with time for an employee to properly consider their position. In all cases, it is essential for people to realise the significance of a disciplinary meeting and how it is handled.
While I’ve endeavoured to provide a broad overview of some of the important things to keep in mind when confronting this kind of issue, it is really only the tip of the iceberg. There are many issues that may be relevant or possible in a specific case, which is why I would always recommend people confronting such an issue to get advice as early as possible. Like it goes with health, prevention is better than cure.
If you are interested in finding out if our employment lawyers can help guide you in any situation you face, please get in contact with us. While we have multiple locations across Queensland, we frequently help employers, executives and employees with disciplinary processes across Australia.
The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.
Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to disciplinary meetings. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Southport and Townsville – although we have the capacity to advise and represent people nationally.