Disciplinary Action
Factsheet
10.
Overview
This fact sheet explains when and how your clients can and should discipline their employees.
The Law
Australian law does not contain specific, detailed requirements or obligations concerning disciplinary action. Instead,
various laws, Modern Awards, Enterprise Agreements, and individual contracts of employment set out general
principles that your client should follow when disciplining their staff.
Defining ‘Disciplinary Action’
Disciplinary action may take many forms, and it may be formal or informal. Examples of common types of disciplinary
action include:
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Verbal warnings
Written warnings
Stand down
Demotion, and
Dismissal
Disciplinary action will most commonly occur as a result of an employee’s disobedience or poor performance.
It is very important to clearly distinguish between performance management and disciplinary action. Performance
management should occur when an employee’s unacceptable conduct or performance results from a lack of skill,
training, or confidence. In these situations, appropriate performance management may include additional training,
provision of extra support, or regular ‘check-ins’.
Disciplinary action should be taken when:
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there is a history of unacceptable conduct or poor performance, or
the unacceptable conduct or poor performance results from a lack of care or attention, disobedience, or
misconduct, or
the conduct in question is so serious that more immediate action is necessary
You should encourage your clients to have clearly documented performance management and disciplinary processes
in their workplace.
Disciplinary Process
Generally, the disciplinary process will begin with informal discussions or warnings and then progress to formal
warnings and more serious action, which may include the employee’s dismissal. There is, however, no requirement
for your client to provide ‘three written warnings’ to an employee before they may take more serious forms of
disciplinary action.
Instead, the disciplinary action taken by our client should be proportionate to the poor performance or misconduct in
question. For example, if an employee is late for work due to their own poor planning, it would not be appropriate for
your client to dismiss them. However, if the employee has been late on several occasions and has previously been
Disclaimer: This factsheet is intended to provide general information only. It should not be relied upon as legal advice. Formal legal
advice may be necessary in a particular transaction or on matters of interest arising from this factsheet. Workforce Guardian Pty Ltd
is not responsible for the results of any actions taken on the basis of information in this factsheet, nor for any error or omission
contained within this factsheet. Content correct as at: 27 January 2015
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issued with a final written warning confirming that dismissal may occur if lateness is repeated, dismissal may then be
justified.
It is very important that your client maintains accurate records of all discipline-related discussions with their
employees. These records will be particularly useful if the employee lodges an adverse action or unfair dismissal
claim against your client after disciplinary action has been taken. You can find out more information about these
claims in dedicated Factsheets in this series.
When to Dismiss
There are generally three occasions when it is appropriate for your client to dismiss an employee:
1. When the employee engages in serious misconduct, which may include theft or violence
2. When the employee is found to have breached a written policy or procedure that expressly states that breaches
may result in dismissal, and
3. When the employee is a on a final warning which expressly includes the threat of dismissal, and the employee
repeats the conduct or performance that gave rise to the final warning
This is not a complete list and each situation must be considered on its merits. This is why it is so important for your
clients to obtain professional advice before dismissing an employee, particularly if the employee has been employed
for more than 6 months (or 12 months in a business with fewer than 15 employees) and is therefore protected from
unfair dismissal.
It is also important to note that employees are generally entitled to receive notice if they are dismissed. The amount
of notice – or payment in lieu of notice – is based on the how long the employee has been employed by your client.
You can find more information about notice periods in Factsheet 1 in this series.
If an employee engages in ‘serious misconduct’, your client is entitled to dismiss the employee without any notice or
payment in lieu of notice being provided.
Importantly, your client must provide employees with an opportunity to respond to their concerns before they confirm
a final decision to dismiss them. This is a two stage process:
Stage 1: your client must explain to the employee why they believe dismissal is justified, and
Stage 2: the employee must be given an opportunity to explain why they believe they should not be dismissed
This is an essential step that must always be followed regardless of whether the proposed dismissal relates to general
or serious misconduct.
Advice for Your Client
Many employers try and avoid conflict with their employees and choose to overlook conduct or poor performance.
The best advice you can give your client is to make sure they pro-actively deal with poor performance and
unacceptable conduct as and when it arises. This will help protect both your client and their business.
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