Disciplinary action is a necessary part of workplace management, but it must be handled with fairness, clarity, and strict compliance with Australian employment laws. It is of utmost importance for the employers to follow a procedurally fair and transparent process, especially when an outcome may involve termination of employment. Failing to do so may expose employers to unfair dismissal claims or legal liability, even in cases which may involve genuine misconduct.
Step-by-Step Disciplinary Procedure
To manage misconduct or performance issues effectively and legally, we encourage employers to follow the structured approach suggested below:
- Investigate and Establish the Facts
Begin with a thorough investigation into the allegations by gathering relevant evidence, interviewing any witnesses, and documenting the findings. The goal is to determine whether a disciplinary action/process is warranted based on credible facts.
- Notify the Employee in Writing
Provide the employee with a formal letter outlining the allegations you require them to respond to; potential consequences (e.g., dismissal if misconduct is proven); the date, time, and location of the disciplinary meeting.
- Offer a Support Person
Inform the employee that they may bring a support person (e.g., a colleague or union rep) to the meeting. This is a procedural right under the Fair Work Act.
- Provide a Chance to Respond
During the meeting, allow the employee to respond to each allegation and present any evidence, mitigating factors, or context.
- Pause for Consideration
After the meeting, take time to fairly assess all evidence and arguments raised. Avoid making snap decisions, especially if emotions ran high during the meeting.
- Make a Fair Decision
Only after careful deliberation should you decide on the appropriate outcome. Options may include:
– No action, where allegations are not substantiated
– Formal warning, where allegations are substantiated
– Performance improvement plan
– Dismissal (in serious cases or for repeated behaviour): Termination should generally be the last resort unless serious misconduct justifies immediate dismissal.
- Communicate the Outcome
Inform the employee of the outcome both verbally and in writing.
Importance of Procedural Fairness
Time and again, case law has demonstrated the importance of affording procedural fairness to the employees and following proper disciplinary procedures.
In a recent decision in Iversen v Arramwelke Aboriginal Corporation (2025), the Fair Work Commission (‘FWC’) awarded $18,000 in compensation after a CEO was dismissed without KPIs or performance reviews. The employer was found to have not exercised the procedural fairness.
Similarly, in Brownson v Australian International Islamic College Ltd (2025), the dismissal of a teacher for yelling at students was found by the FWC to be “retaliatory” and unfair, not based on substantiated misconduct. Thus, the college was ordered to pay $56,000 in compensation.
A robust disciplinary process protects not only the business but also the integrity of the workplace. Further, it saves the business from economic losses due to paying hefty compensations as well as from reputation damage. With the rise in unfair dismissal claims, particularly around poorly handled investigations or insensitive internal messaging, employers must follow a clear, fair and legally compliant process. By applying the step-by-step approach outlined above, employers can reduce legal risks while promoting a respectful and transparent workplace.
In addition to the valuable advice from the professional advisors, BetterHR subscriptions provide access to:
- disciplinary procedure letter templates, including invitation to a disciplinary meeting letter, show cause letter, warning letter, termination letters, etc.
- guides and flow charts for disciplinary process and performance management for employers to follow.
- disciplinary policy and procedures to implement in the workplace
These resources can also be purchased through the BetterHR shop.
If you need further information or assistance, please contact BetterHR’s experienced HR consultants, and qualified lawyers on 1300 659 563 or visit: Subscribe to BetterHR.
