Disciplinary process flowchart

START: Through our Code of Conduct, policies and values, we encourage the highest standards of integrity, ethics, professionalism and achievement. We agree to performance and development targets and it is your responsibility to ensure those standards are upheld and take action where they are breached. Your responsibilities include regularly setting expectations, monitoring progress and taking action where necessary to get performance back ‘on-track’. You should not hesitate to use disciplinary action where our standards have been breached and other attempts to correct the issue haven’t succeeded or aren’t appropriate. Be sure to involve your manager and Organisational Development and Capability at the outset in such cases. Also make yourself aware of the legal considerations. Team members can challenge discipline or dismissal and we must then prove we had good cause for our action and that our process was procedurally fair. Follow our guidelines for the disciplinary process to ensure you get it right. Note: Out of hours or emergency situations. If you can’t get hold of your manager or Organisational Development and Capability but you believe the person will be a genuine risk to people, property or the investigation if they remain on site you may send them home, on pay, until the next working day. First discuss the matter with the most senior person immediately available to you.

1. The preliminary investigation is to establish whether there is any substance to the allegations/incident. If there is substance we need to plan the disciplinary process, get the right people involved, then advise the team member(s). You need to:

• Advise your manager and involve Organisational Development and Capability.
• Get brief statements from main witnesses or complainants.
• Assemble any facts or documents supporting the allegation.
• Secure evidence, so it isn’t destroyed or changed.
• Identify the rule/policy/standard etc that’s been breached.
• Document the allegation and what you have done with good diary notes.
• Consider if a suspension is required (refer Step 3).
• Agree your investigation plan.

Enough evidence to proceed? After the initial investigation, you must decide whether to proceed with a disciplinary process. Ask yourself, is it reasonably likely (subject to further investigation) that there has been misconduct, serious misconduct or continued unsatisfactory performance or behaviour and that disciplinary action is a potential outcome? Are you the right person to handle this? As the team member’s manager you should play the lead role in disciplinary matters including making the final decision about what action will be taken. If the outcomes may include a warning or dismissal, advise your manager and involve Organisational Development and Capability in the process. Handle it now or later? A brief delay might be sensible if; the team member needs to cool off or you need to collect more evidence or involve other managers. Typically, you will need time to gather further evidence before the investigation interview (Step 5) and the team member should continue working in the interim. In rare cases you might consider a suspension on pay (refer Step 3 for details) until Step 5 because you consider there is a risk to the investigation if they remain at work (e.g. they might destroy evidence, threaten witnesses or interrupt the investigation process). When the right people are involved and your investigation is planned, Organisational Development and Capability have prepared a letter to the team member informing them of the investigation/disciplinary process its time to advise the team member a disciplinary process has begun. Use the advice of disciplinary process conversation plan to prepare. If, as a result of the preliminary investigation, you decide that disciplinary action is not required but some other action may still be necessary including for example: coaching, a clear, honest and direct conversation, setting of expectations, training, or discussing and agreeing a Performance Improvement Plan, as an alternative to disciplinary action. Your plan will make clear that if the defined improvement isn’t made in the specified timeframe then disciplinary action will follow.

2. Have a witness present and use the advice to team member of disciplinary process – conversation plan to advise the team member of:

• The allegations and potential impact on them if the allegations are sustained.
• The investigation process including the timetable
• Who will attend the meeting.
• Their right to be represented.
• They will be provided with all relevant information from the investigation and have the opportunity to provide a full explanation.
• If necessary, remind them not to attempt to interfere with the investigation or to speak to other team member’s or witnesses about the investigation.
• Hand the team member the invitation to investigation/disciplinary meeting letter, and advise them the letter will confirm what has been discussed.
• If you believe suspension on pay is appropriate to facilitate the investigation, take the actions in Step 3 as part of your advice to the team member conversation.

3. Suspension allows you, where their presence might compromise the process, to require the team member not to attend work during the disciplinary process. Risks that might justify a suspension include;

• The team member tampering with evidence, influencing witnesses, damaging property etc;
• The misconduct being repeated, putting themselves, others or the organisation at risk;
• Concerns for the team members safety;
• A cooling down period (for example after fighting or an abusive exchange);
• Some other risk to council business or reputation.
• Before you and the group manager decide on suspension, consult the team member, as part of the advice to team member of disciplinary process conversation, about the need for the suspension and consider their response. Organisational Development and Capability will confirm your decision using the suspension letter. Suspension will usually be on pay, unless the period of stand down extends beyond two weeks due to a police prosecution or investigation (or any other third party enquiry) or the staff member delays or refuses to participate in the disciplinary process. Note: While stood down the team member is required to remain available to the investigation/disciplinary process and assist as required.

4. Complete a full investigation including:

• Interviewing everyone who may have information.
• Obtaining all relevant information and documents.
• Thoroughly checking any ‘alibis’ or explanations you’ve heard.
• Avoid ‘predetermining’ the outcome by being unbiased and open minded.
• Try to anticipate any potential defence the team member may make and investigate its likely strength or weakness.
• Document your steps and evidence so you can present them to the team member in Step 5. i.e. what rule/standard was breached, what facts back that up, over what time, who witnessed the behaviour/breach, what evidence is there that the team member knew about the rule/standard, is the standard reasonable?, do others meet the standard?; was the team member’s training and support reasonable? etc.
• Give all relevant information you have gathered (statements from others, documents showing the breach etc) to the team member before you meet with them so they can respond at Step 5.

5. At the investigation/disciplinary meeting, follow our tips for conducting the full investigation and use the investigation interview – conversation plan. Key elements are;

• Ensure the team member fully appreciates the significance of the interview and what are the most serious realistic consequences.
• If they aren’t represented check they are waiving their right to representation.
• If not adjourn the meeting until representation is available.
• Have a support person as a witness and to take notes.
• Make clear you will require a full explanation.
• Detail the allegation/complaint and your evidence. If necessary adjourn so they can consider information they haven’t seen before.
• Ask for a full explanation and test it thoroughly.
• Adjourn to consider the explanation and check any reasons, excuses, alibis etc you received.

6. Consider all you have heard and decide, ‘on the balance of probabilities’ what’s most likely to be the truth, whether a breach of standards, Code of Conduct, policy etc has occurred and if some disciplinary action is justified. Note: the question of what action to take comes next after considering any mitigating factors. See our tips for considering employee explanation. Key elements in your decision include:

•  If new facts emerged at Step 5 check them out before making a decision.
• If there are differing stories you are entitled to decide which version or explanation is more likely to be true.
• Your must be ‘unbiased’ and ‘objective’.
• If you find no breach tell the team member. If you decide, on the balance of probabilities, a breach has occurred the next step is to consider what level and type of action you should take in response.
• If you conclude a breach of standards, Code of Conduct, policies etc has occurred the next step is to decide what action to take.

7.  At Step 2 and Step 5 you will have explained to the team member the options available (see Guidelines for the Disciplinary Process) including the maximum potential penalty. Now, consider any of the mitigating factors that might cause you to scale back the penalty that would typically be imposed. You may decide to give the team member your preliminary view regarding the penalty and/or disciplinary action and invite their feedback and response to this before you confirm your final decision. This also enables the team member to provide any mitigating factors that they want you to consider when you decide the outcome. Then adjourn and decide (after advising your manager and discussing with Organisational Development and Capability). See our tips for deciding on a penalty. In deciding what action to take, you should consider the following potentially mitigating factors:

• Knowledge (did he/she know rules and requirements?)
• Quality of information/evidence (is it sound or shaky?)
• Seriousness (how bad is the problem?)
• Implications (importance of action or inaction on this matter)
• Past practice (history in these cases?)
• Consistency (how have others been handled?)
• Team member’s work history (good or bad?)
• Frequency (how often has he/she infringed?)
• Time span (how long since last incident?)
• Personal circumstances (how would various penalties impact the team member?)
• Impact (how is his/her actions impacting on the health and safety and work performance of others around them.)
• Conduct further investigations if required.

8. Call a meeting to convey the decision to the team member (and their representative). See our tips for implementation and ensure you cover the following;

• Summarise the original allegations and the investigation steps you’ve taken.
• Outline your findings from the investigation including key evidence and your conclusions and how you reached them.
• Explain the penalty you will be imposing.
• If the penalty is dismissal explain exactly when termination takes effect, what their final payments etc will be and any arrangements for returning company property.
• If the penalty is not dismissal talk about the expectations you have for improvement in future.
• Ask for their agreement to improve and agree both what they need to do to improve and how you will measure/monitor that improvement.
• Confirm the decision will be put in writing by Organisational Development and Capability after the meeting.

Other Options: If, as a result of the preliminary investigation or after hearing the team members full explanation, you decide that disciplinary action is not required some other action may still be necessary including for example: Coaching, a performance improvement plan, an informal reprimand or Setting of expectations, training etc.  Be sure to advise the team member of this outcome and that this is no longer a disciplinary matter.