• A disciplinary hearing is a formal hearing organised by your employer to discuss any issues relating to your work including:

1. underperformance;
2. inappropriate or unacceptable behaviour;
3. sexual or physical assault;
4. verbal abuse; 
5. professional misconduct; or
6. unsatisfactory professional conduct.

• If you have received a written notice of attendance you must attend the hearing.
• You may request a more appropriate date and time be set aside for the hearing if you cannot attend the listed date and time.

• Disciplinary actions usually include:

1. additional training;
2. formal written warning;
3. an order for a formal apology;
4. counselling;
5. fines;
6. transfer, suspension or probation; or
7. in most serious cases termination of employment. 

• ll parties have a right to representation at a formal disciplinary hearing. You should contact the federation or trade union that you may be part of as soon as possible. 
• Some federations or trade unions offer their members support and representation in certain matters. 
• Remember that as the employee you have the right to have a support person present with you at every stage of the disciplinary process. 
• If you are under 18 years of age then your parent, guardian or another adult should be present with you at the disciplinary hearing as your support person. 
• An employee or an employer will usually only seek legal representation for formal disciplinary hearings. 

• In most cases you are allowed to challenge the outcome of a hearing. 
• Many industries have specific policies and committees that regulate disciplinary hearings and appeal. 
• You should speak to a lawyer as soon as possible to discuss your options. 

1. Do not delay as most appeal processes are subject to time restraints. The applicable period is usually 14 days. 

• Your disciplinary hearing outcome notice should list allowable grounds of appeal and the procedure that must be followed. 
• Depending on your individual matter you may also be entitled to initiate an appeal at the Fair Work Commission or the Fair Work Ombudsman. 
• You may also choose to litigate the matter in court. 
• It is always a good idea to seek legal advice before commencing any formal complaint or appeal processes. 

• Most workplaces adopt guidelines to assess the seriousness of an employee’s misconduct before determining the necessity of summary dismissal. 
• Generally the following actions may lead to immediate termination of employment:

1. large scale fraud;
2. theft;
3. intentionally leaking sensitive information;
4. consistent failure to maintain or reach a reasonable standard of competency at the workplace; or
5. sexual harassment.

• Making minor mistakes is normal in everyday life. Most workplaces adopt policies that help the offending employee improve their conduct. 
• Minor mistakes may lead to:

1. an initial warning being issued;
2. counselling or coaching; or 
3. the imposition of disciplinary action other than termination of employment. 

• Examples of minor mistakes include:

1. poor customer service;
2. threatening or abusive behaviour; or
3. occasional tardiness (lateness) to work.  

• Performance related conduct is related to the employee’s performance in fulfilling their professional expectations. This includes: 

1. regularly attending meetings;
2. consistently meeting any set targets;
3. delivering work of an expected standard;
4. meeting work deadlines; and
5. fulfilling all the expectations of your role.

• Inappropriate conduct or misconduct is related to the employee behaving outside the standards expected at the workplace. Normal standards include:

1. behaving appropriately at the workplace;
2. wearing suitable clothes or uniform to the workplace;
3. maintaining confidentiality; 
4. not engaging in any fraudulent behaviour;
5. working honestly;
6. ensuring that the workplace is secure at all times such as locking the door properly at the end of the day; and
7. not using company resources unreasonably and inappropriately. 

• There is no strict rule for the number of warnings an employer must give to an employee prior to commencing any disciplinary action. 
• An employer should remember that workplace discipline should aim to help an employee improve their behaviour or conduct. 
• Generally three warnings are considered sufficient. 
• It is the employer’s responsibility to ensure that their employees understand the seriousness of the consequences of their underperformance or inappropriate conduct. 

• Most workplaces have specific disciplinary action policies that list any time restraints that must be adhered to. 
• An employee cannot be asked to attend a disciplinary hearing without being given sufficient notice and time to prepare a defence.
• Usually three business days is considered to be sufficient notice but this may vary depending on the severity of the offending conduct.

• Both terms are often used interchangeably and the difference between them is simply a matter of workplace policy. 
• If you work in a small workplace you may be issued a notice to attend a disciplinary meeting. In that meeting the following people will be present:

1. your employer; 
2. you; 
3. your support person or union representative if any; and
4. a person to take minutes of the meeting. 

• If you work in a medium or large workplace you may be issued a notice to attend a disciplinary hearing. An independent committee may investigate the matter and conduct the disciplinary hearing. These formally conducted meetings run in a similar way to a court hearing. 
• At a disciplinary hearing the following people will usually be present:

1. chairperson;
2. employer or their representatives; 
3. employee, their representatives and support person;
4. a person to take minutes of the meeting; and
5. any person who is a witness. 

• In some industries disciplinary hearings and disciplinary actions may be regulated by a third party. That third party (such as a tribunal or board) usually has the power to impose severe penalties. For example in NSW only the NSW Civil and Administrative Tribunal has the power to remove or suspend a doctor from the medical profession.

• The following issues should be addressed at a disciplinary hearing or a disciplinary meeting:
• the specific requirements of the role and how they haven’t been met;
• any mitigating (reducing/excusing) factors that the employee wishes to address. For example:

1. personal problems;
2. health problems;
3. difficulties at workplace; and
4. workplace issues such as bullying;

• what steps should be taken to improve the employee’s performance and conduct and whether the employer can assist in any way; 
• a time frame for improvement which may include:

1. a detailed action plan; and
2. review or follow-up meetings; and

• the consequences for future non-compliance.

• An employee should not accept the allegations made against them unless it is a very clear case. 
• An employee should always seek legal advice regarding their specific matter and the consequences of accepting allegations made against them. 
• An appropriate penalty may be imposed if the employee does decide to accept the allegations. 
• The employee may be given an opportunity to offer any mitigating (reducing/excusing) factors that may lessen the penalty. 
• The employee may also be informed of their right to appeal the decision and the procedure that must be followed.
• The employee will be provided with a written notice of the decision at the conclusion of the meeting.  

• Mitigating factors are matters that: 

1. may affect a person’s particular situation; or
2. factors that may have caused a person to engage in conduct that has led to disciplinary action. 

• Such factors aid a person’s case and are usually presented to lessen a penalty that may otherwise be imposed against them. 
• Mitigating factors that affect a person’s particular situation include:

1. personal circumstances;
2. financial difficulty;
3. health issues;
4. term of employment;
5. age;
6. attitude to the offence;
7. mental health; or
8. work history.

• For example a person who is frequently late to work may argue that due to financial difficulty they must catch public transport and the bus is very unreliable. They deserve to have this taken into consideration to lessen the penalty they may receive.
• Mitigating factors that may relate to the offending conduct itself include:

1. workplace bullying;
2. moral values;
3. position at workplace; or
4. your relationship with the employer.

• Aggravating factors are issues that may count against an employee at a disciplinary hearing such as: 

1. the seriousness of the offending conduct;
2. past history of offending conduct;
3. position of the employee in the workplace; and
4. length of offending conduct.

• For example in a case of verbal abuse it would likely be considered aggravated circumstances if the offender was a manager and they were abusing their staff. This is because they are in a position of authority and their staff may be too frightened to stand up for themselves for fear of losing their job. The manager’s offence should be considered more serious than if it was one co-worker to another. 

• An opening statement is a necessary part of a formal disciplinary hearing. It helps introduce the issue, the evidence and the consequences of the conduct of the other party. 
• The opening statement should be addressed to the chairperson. 
• It should include only factual matters and should not be argumentative. 
• It should brief and follow a logical structure. 
• An employer usually has the right to give the first opening statement. This may vary depending on the chairperson and the procedure guidelines. 
• The following matters should be addressed in an employer’s opening statement:

1. description of the offending conduct;
2. evidence that will be relied on to prove the offending conduct; and
3. the impact of the offending conduct on the workplace.

• The following matters should be addressed in an employee’s opening statement:

1. summary of the material facts of what is being alleged; and
2. summary of the material facts that the employee is alleging.

• Having a timeline of events is a good way to summarise the facts.

• An employee should first look at the workplace disciplinary policy to see if there are any internal grievance procedures that must be followed. 
• An employee may also lodge a complaint to an external independent committee such as:

1. the Fair Work Ombudsman; or
2. the Fair Work Commission.

• If the employee believes that they have been discriminated against they may also complain to the:

1. Australian Human Rights Commission; or
2. a state tribunal with jurisdiction over anti-discrimination such as the NSW Civil and Administration Tribunal for NSW complaints.

• It is imperative that an employee seeks legal advice as soon as possible as many of these procedures are subject to strict timeframes. 

Question

I own a small business and have five employees. One of them is turning up late frequently. He has also received complaints from our customers about being rude and having bad hygiene. Can you recommend any disciplinary procedures I can implement at my work place so I know how to handle this employee and future employees?

Answer

• There is no model disciplinary procedure that applies to every workplace. 
• However there are general principles that you should keep in mind when drafting a disciplinary action policy. 
• Employers should periodically counsel employees who are underperforming at a workplace. 

1. This is an important step to ensure that employees understand the standard of work that is expected of them. 
2. You should tell your employee that he must be on time and that he has received complaints about politeness and hygiene.
3. Make clear the consequences of repeated failure to improve.

• Employers should maintain an accurate log of all incidents and maintain a record of any action that has been taken:

1. you should make note of any complaints that are received and  dates and times when the employee arrives late;
2. you should also note when you speak to the employee about the problems and what their response is; and 
3. a copy of the record should be given to the employee when you speak to them.

• An employee should be given sufficient time and opportunity to improve their performance.

1. An employer may adopt a warning procedure to ensure that the employee is working properly. 
2. Tell your employee this is his first warning and that he has two more before his employment will be terminated.

• You can choose the number of warnings you want to give but 3 is recommended.

1. The warning should be in writing and include consequences of repeated underperformance or unsatisfactory conduct. 

• A disciplinary policy should entitle the employer to summarily dismiss (without notice) an employee for serious misconduct. This should be done in writing and give a detailed explanation of the offence. The letter should also set out what the employee should do if they feel the dismissal is unreasonable.
• An employee has a right to have another employee, trade union representative or a support person present at every stage of the disciplinary process. 

Question

• I am a medical practitioner at a local practice and have been called for a disciplinary hearing in relation to non-fulfilment of my Continuing Professional Development (CPD) hours. What can happen at the hearing? 
• Answer
• All industries have their own disciplinary procedures and protocols. 
• In the medical industry complaints that may lead to a finding of unsatisfactory professional conduct are usually referred to a Professional Standards Committee (PSC). 
• A PSC investigates and conducts disciplinary hearings in accordance with the principles of natural justice. 
• You are also entitled to be accompanied by a lawyer at the hearing. 
• If the complaint is substantiated at the hearing the PSC pursuant to section 146A of the Health Practitioner Regulation National Law (NSW) may issue:

1. a caution or reprimand;
2. order that you seek treatment or counselling;
3. impose conditions relating to your continuing practice of medicine;
4. order that you complete specified education courses; or
5. issue a fine.

• Note that only the NSW Civil and Administrative Tribunal (NCAT) has the power to suspend or de-register a medical practitioner and then only if it is satisfied that the medical practitioner is guilty of:

1. professional misconduct; or
2. unsatisfactory professional conduct.

Question

Last week at our fortnightly meeting, my supervisor started commenting and reprimanding me on my work in front of all other staff members. It was humiliating. Can she do this? Isn’t it bullying?

Answer

• Being called to a disciplinary meeting can be quite distressing. It is important to stay calm.
• As you are under 18 you have the right to bring a parent, guardian or other adult along to be your support person. 
• Ensure that a third person who has no participatory role in the meeting has been appointed to take minutes. The minutes should record:

1. the time, date and place of the meeting;
2. the participants in the meeting; and
3. an accurate translation of what was said and by whom. 

• A meeting can only be recorded with your permission. 
• Answer any questions put to you in a careful manner. Remember that you may have done nothing wrong and this is your chance to tell that to your employer. 
• Do not make any admissions or offer any additional information that may prompt further questions. 
• Do not answer any questions that suggest or hold allegations of a criminal nature. You must seek legal advice as soon as practicable if you have been accused of anything criminal in nature such as stealing or assault. 
• If you feel intimated, harassed, bullied or afraid at any time during the meeting you may:

1. ask for an adjournment:

• to a later date; or
• until you can organise a support person;

1. halt the meeting and walk out: 

• you must as soon as possible write to the chairman of the meeting outlining your reasons for walking out especially detailing your treatment at the meeting; and
• ask the chairperson to provide you with a written notice outlining the outcome of the meeting.
• You should always seek legal advice from an expert employment lawyer before going to a disciplinary meeting or if not practicable as soon as possible after the conclusion of the meeting. 

Question

I just got a new job. I’m worried because my colleagues have warned me that the boss is really strict and you must do everything perfectly or you get warnings and then eventually fired. How can I tell if I’m not doing my job well enough?

Answer

• There are many ways you can ensure that you are not underperforming at your workplace. 
• Many issues at a workplace arise due to:

1. lack of communication;
2. lack of clarity about position and workplace requirements;
3. employer’s disinterest in an employee’s progress;
4. lack of appraisal systems; or
5. lack of guidance or supervision. 

• You should be very clear about your position, role and expectations at the workplace.
• If you have any queries related to your position and the requirements of your role you should arrange a meeting with your supervisor or employer to discuss the issues. 
• You should be aware of any professional or financial targets that you need to meet. 
• Request regular feedback on your performance from your supervisor.
• Periodically review your workplace requirements and role expectations with your supervisor. 

Question

My employer called me to her office this evening and started talking to me about my recent conduct at workplace. I wasn’t prepared for the meeting and found it confronting. I couldn’t respond to her allegations and wasn’t able to convey to her the reasons for my conduct. What can I do?

Answer

• If your employer has a problem with your conduct you should be given a fair opportunity to respond to the allegations. 
• In this situation you should give a written request to your employer asking for a new formal meeting to be arranged. 
• The employer should provide you with a written notice specifically outlining:

1. when, where and at what time your meeting will be held; and
2. what issues will be discussed.

• You are entitled to have a support person present with you at a formal meeting. 
• If your employer refuses to arrange a formal meeting or does not follow the principles of natural justice you may:

1. lodge a complaint with Fair Work Ombudsman:

• note that this is a lengthy procedure and offers only limited options for redress;

1. make an application to the Fair Work Commission if you feel that the employer is denying you your workplace rights but be aware that this is not an easy or a quick remedy; or
2. seek legal advice about your specific issue: 

• depending on the facts of your particular case there may be other avenues that you may approach such as anti-discrimination law. Please see our Anti-Discrimination topic for more information.

Question

I had a very bad experience with my lawyer who gave me poor advice and charged me an excessive amount of money. Can I request that disciplinary action be taken against the lawyer?  

Answer

• In NSW the legal industry has two independent committees that investigate complaints against the professionals in the industry:

1. the Office of the Legal Services Commissioner; and 
2. the Law Society of NSW. 

• Your complaint must be made in writing to the Office of the Legal Services Commissioner within three years of the date on which the offending conduct occurred. 
• You cannot demand that disciplinary action be taken against a lawyer. The committee makes that decision. 
• There are two main types of conducts that may lead to a complaint:

1. professional misconduct; and
2. unsatisfactory professional conduct. 

• Once a complaint has been initiated:

1. the committee investigates the complaint; and
2. if the complaint is substantiated a disciplinary hearing may be held.

• Professional misconduct is the most serious charge a lawyer or barrister may face about their professional conduct. 

1. Serious cases of professional misconduct may lead to suspension or termination of their practicing licence. 
2. Examples of serious professional misconduct include:

• gross overcharging;
• acting contrary to client instructions;
• misleading conduct;
• misappropriation of trust money; or
• conflicts of interest.
• Conduct that does not amount to professional misconduct is termed ‘unsatisfactory professional conduct’. 

1. This refers to types of behaviours that fall short of the expected standard for a member of that profession.
2. Examples of unsatisfactory professional conduct include:

• threatening or abusive behaviour;
• poor advice or representation;
• causing unreasonable delay; or
• non-disclosure of costs.

Question

The Academic Misconduct Committee recently called me to a disciplinary hearing at my University. First of all, I didn’t know the university could call disciplinary hearings for academic misconduct? Secondly, I felt that the Committee was biased against me and I want to appeal their decision. What can I do?

Answer

• Most universities have their own policies regarding academic misconduct and grounds for appeal. It is likely that these would include holding disciplinary hearings.
• You should check the Student Academic Misconduct Policy and seek legal advice regarding what is the most appropriate ground of appeal. 
• Your written notice outlining the decision of the disciplinary meeting should:

1. state your grounds for appeal; and
2. any time frame which must be adhered to. 

• The following issues are usually grounds for appeal: 

1. if the student believes that there has been a breach of procedural fairness;
2. if the student considers that there is new substantial evidence relating to the offence that wasn’t present originally; 
3. if the student doesn’t believe the allegations are correct; or
4. if the student considers the penalty imposed is too severe. 

• Once you appeal the decision the possible outcomes include:

1. allowing the appeal leading to a new hearing being conducted;
2. dismissing the appeal meaning that the initial decision stands; or
3. dismissing the appeal but varying the penalty. If the penalty is varied the student is provided with a new notice outlining the decision. 

Question

A few years ago, I made a complaint against a colleague which resulted in disciplinary action being taken against him. That colleague now holds a senior position at my workplace and is part of the disciplinary committee. I have been given a notice for attending a disciplinary hearing next week. Can I ask the colleague to stand down from the hearing due to past prejudice?

Answer

• If you suspect that the presence of your colleague may affect the principles of procedural fairness at the hearing you may request your manager or the chairperson of the disciplinary committee to remove that person from your hearing.
• You must put your request in writing and as soon as possible; 
• If your request is not accepted you may complain to the Fair Work Commission.