When it comes to dismissal processes, many Employers either don’t have or don’t follow their own policies or procedures meaning significant process errors can occur, leaving Employers exposed to challenge or the lodgement of a personal grievance by an Employee.

“But I’m entitled to three strikes (warnings) before I’m out!” is a statement sometimes heard by Employers from aggrieved employees during disciplinary meetings. This is a common misconception by Employees as there is no legislation that specifies the number of warnings employees should be given prior to dismissal, though best practice would be to give at least two formal warnings for problems related to either performance or misconduct. In determining how many warnings are required, Employers should refer to their company policy and consideration of what would be fair and reasonable given the context of the situation.

In instances of extremely serious misconduct, an Employer doesn’t need any strikes – the first strike, an Employee can be out! An Employer may be able to summarily dismiss an Employee without giving them any notice, or payment instead of notice. The Employer must ensure a fair and reasonable process is conducted, and they have a good reason for doing so. In this situation, the Employee has to leave work right away and is not paid for any notice period or part of notice period. The Employee would still be entitled to any annual holidays and other entitlements they are owed, in their final pay.

In considering the appropriateness of a disciplinary outcome, there is no particular ‘rule of thumb’ for cases. Every situation must be looked at individually and in context, considering a number of factors including but not limited to:

• Consider the Employee’s response / explanation and have an open mind as to the outcome
• Consider what a fair and reasonable employer could do in the circumstances
• Any mitigating factors to take into account (eg workplace challenges, health or family issues)
• Equity and disciplinary outcome of any other affected employees in the same or similar fashion (unless there is good reason to treat them differently)
• The employee’s previous record
• Their length of service
• The nature of their position and responsibility in the business
• The severity of the conduct and any potential reputational damage to the Employer

All too often Employers don’t deal promptly with performance or misconduct issues as they arise. Employers can fail to take action as soon as an Employee’s behaviour or performance falls below expectations and they ‘save up’ or wait until the ‘final strike’ to deal with matters of misconduct and serious misconduct in the workplace. By this point, many of the examples the Employer attempts to use are outdated and the length of time waited to address them leads to Employers inadvertently condoning the unacceptable behaviour.

In summary, it is incumbent on Employers to prepare for Employee disciplinary and dismissal processes – refer to the business’ policies and procedures, assemble the facts carefully, act in a considered way, communicate openly and effectively with the Employee and ensure you advise them of their rights.

For more information or advice in dealing with Employee performance issues, misconduct or establishing robust HR policies to guide you through the above processes, call us now on Freephone (0508) 424 723.