Warnings about Warnings ...

Most employers know they can not dismiss an employee without a good reason (Substantive Fairness); however many employers make basic mistakes by not meeting the required procedural requirements before issuing a warning or dismissing an employee (Procedural Fairness).  
The process can be fraught with difficulty if not handled well, and opens employers to employees’ taking Personal Grievances for unjustified dismissal. There are many cases where employers had complete justification to dismiss, but because they did not follow a fair and proper process, the employee successfully challenged their decision and was therefore awarded a payment.

The appropriate procedure will often depend on the nature of the issue and whether there have been previous warnings for similar behaviour.  The employer must behave in Good Faith and also follow its own disciplinary procedures/house rules set out as part of the employee’s employment agreement.

What is crucial to complying with these aspects of fairness is consultation with the employee, carrying out a proper unbiased investigation and having an open mind as to the outcome (no bias or predetermination by the employer).

The disciplinary procedure should not be considered a punishment - it is a constructive way to ensure that employees do not continue to put their jobs at risk. It is designed to undertake a full and fair investigation, eg checking facts, interviewing witnesses, if any, and reviewing the employee’s personnel file.  The decision-maker must be involved in the investigation.  

A meeting must be held with the employee with proper notice given so they have time to prepare, and opportunities for them to have a support person present. The employee must know what possible outcomes may be - eg warning or dismissal.

All issues must be thoroughly investigated and discussed with the employee, who must be given the opportunity to respond. The employer should adjourn the meeting to consider the all the relevant facts and the employee’s explanation. The employer should check company records for previous similar cases, to ensure that there is no disparity of treatment between employees.

After the investigative meeting, if a decision is subsequently made to give a warning or dismiss, a final meeting should be held to inform the employee – after careful consideration of the facts and usually the day after the disciplinary meeting. The employee should be told the reasons for the warning or dismissal decision including a response to any explanations by the employee. Where dismissal is appropriate, it’s good practice to advise the employee of the action the employer is considering and give the employee another chance to respond in person prior to the final decision. The employee should then be formally given a letter of warning, or dismissed. 

Every situation is different, and the correct process can vary within general guidelines.  It is recommended that employers take professional advice before embarking on the disciplinary process, particularly where dismissal could be a possible outcome.

Paddy Battersby :: Battersby HR Consulting :: www.battersbyhr.com :: 09 838 6338 :: paddy@battersbyhr.com

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