Disciplinary issues can be complex, with employers often unsure how to respond while staying compliant with workplace laws.
Here, our experts answer common questions on disciplinary action that come through our Employee Relations Helpline.
A: It’s important for an employer to establish start and finish times in line with an employee’s contract at commencement of employment. If there are reliability concerns where an employee is failing to attend work at their designated start time, an employer may start a disciplinary process.
Employers should first have a conversation with employees to inform them of the expected start time and understand if there were any reasonable explanations for arriving late. If the employee continues to arrive late without a valid explanation, the next step may be to start a disciplinary process. Employers should allow the employee to provide a response, consider any mitigating circumstances put forward by the employee, and ensure they are following a procedurally fair process.
A: Disciplining an employee for a historic issue, especially one that was previously overlooked, carries many risks that employers should carefully consider.
If an employee is disciplined for past conduct without clear justification or due process, it may be determined that the employer failed to follow procedural fairness. It may be viewed that the issue was not severe if the employer previously accepted the conduct and took no action . A successful unfair dismissal claim is one of the main risks when terminating an employee if there is no valid reason.
Best practice is to address conduct issues promptly as they occur, so that if an employee ends up terminated for their conduct, the employer can demonstrate they have acted immediately after each incident.
A: If an employee fails to attend a disciplinary meeting, the first step is to contact them to determine the reason for failing to attend as there may be a reasonable explanation.
Employers cannot act against an employee for failing to attend a disciplinary meeting if the employee is absent due to accessing a leave entitlement and provides the required evidence or takes the leave in accordance with company policy. If an employee is utilising a leave entitlement, such as personal leave when a meeting is scheduled, the meeting should be rescheduled at a time when the employee is fit to return to work.
The next step is to organise another disciplinary meeting with the employee – this demonstrates you are providing the employee with another opportunity to attend. If an employee fails to attend a disciplinary meeting without a reasonable explanation, it may be appropriate to take disciplinary action against the employee for failing to follow a reasonable management direction.
In instances where the employee is not attending work and is not on an approved period of leave, this may be treated as an unauthorised absence, warranting disciplinary action.
A: An employer must not take disciplinary action against employees for utilising their leave entitlements, such as annual leave, as it is a workplace right. If an employer takes disciplinary action for this reason, it can be seen as taking adverse action, and as a result an employee could make a general protections claim. Adverse action can include when an employer ‘injures’ an employee’s employment.
An employee, however, can be disciplined for failure to comply with evidence requirements or workplace policies, resulting in an unauthorised absence. Unauthorised absences occur if an employee takes leave without approval.
Workplace investigations are a rigorous process requiring careful adherence to procedures, ensuring compliance with workplace laws and reducing legal risks.
Here, our experts answer common questions on workplace investigations that come through our Employee Relations Helpline.
A: Workplace investigations are a key tool for addressing issues that can arise within an organisation. While often prompted by complaints from employees, customers, or third parties, they may also arise from broader concerns such as non-compliance with workplace policies and procedures, failure to follow management direction and breaches of contracts of employment.
Failing to conduct a proper investigation – especially when action is taken or withheld – exposes a business to significant legal risks. These can include claims of unfair dismissal, discrimination, harassment, bullying, general protections breaches and vicarious liability.
A: Upon receiving a complaint, an employer should first assess its seriousness and determine whether a formal investigation is required. This includes considering legal risks, relevant company policies, and any applicable industrial instruments that may guide the investigation process.
The next step is to plan the investigation. This involves defining its scope, reviewing the working arrangements of the complainant and respondent, and identifying any special considerations – such as health issues that may affect participation during a formal investigation or meeting.
The employer should then gather all relevant evidence, interview witnesses and the complainant, present allegations to the respondent, then obtain their response typically in the capacity of a formal meeting. After obtaining all necessary information, the investigator must determine, on the balance of probabilities coupled with relevant and accurate information or material, whether the allegations have been substantiated. If so, appropriate disciplinary action should follow in an outcome meeting.
Throughout the process, impartiality and objectivity are critical. Anyone directly involved in a complaint should not participate in the investigation to avoid conflicts of interest. Where internal impartiality cannot be assured, employers should engage an independent third party.
A: An investigation focuses on fact-finding to ensure that the allegations provided to the respondent are specific and allow them a fair opportunity to respond. This requires details such as times, locations, individuals involved, and a clear account of the incident. Evidence should be gathered accordingly and may include witness statements, documents (e.g., CCTV footage, time sheets, emails), site inspections, or expert input – depending on the nature of the issue.
A: Once the investigation is complete and the respondent has been informed of the outcome, the process should be formally closed. This includes notifying relevant parties and ensuring thorough documentation of the process is securely filed.
Employers should also address any identified deficiencies in policies, procedures, training, or workplace culture that came to light during the investigation. Ongoing monitoring of the workplace – particularly where disciplinary action did not result in termination – is recommended to ensure a safe and compliant environment.
For tailored guidance on disciplinary/workplace investigations, contact CCIWA’s Employee Relations Helpline on (08) 9365 7660 or via advice@cciwa.com.
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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