5 Common Mistakes Employers Make During Dismissals

As with any disciplinary matter, to ensure it’s lawful, an employer who suspects they may need to dismiss an employee is required to work through a process to make that determination. We are often asked to help clients resolve issues they have encountered during a dismissal situation where they have either failed to follow any sort of process or where the process has been flawed.  Some of the most common mistakes we see are:

Predetermining the outcome

Employers are required to treat an act of misconduct, be it serious or not, as an allegation in the first instance.  They then present those allegations to the employee, giving them an opportunity to respond to those allegations.  Then the employer is able to consider that response together with the other information gathered during the investigation before making a decision on a suitable outcome (e.g. no action, warning, final warning or dismissal).  The possible outcome is certainly communicated to the employee when presenting the allegations so as to give them an idea of its seriousness.  But certainly no decisions should be made until the investigation is complete – which most importantly includes giving the employee an opportunity to respond.

Failing to remind the employee of their right to representation

During any formal process where an employee’s employment could be impacted (i.e. a disciplinary process or restructuring situation) the employee has a legal right to representation &/or a support person.  The employee should be reminded of this right early on in the process when you are presenting the allegations and they should be invited to bring their representative &/or support person to the disciplinary meeting.

Not investigating fully or presenting all the evidence to the employee before the disciplinary meeting

It is really important the employee is presented with all the information you are going to use in your decision making.  If you have witness statements or complaints – these must either be in writing or recorded and copies provided to the employee.  The allegations must be specific, demonstrating examples of what the employee has done – not just general comments.  Where they have breached specific policies or procedures/code of conduct/or their good faith obligations – this must be stated in the allegations.

In doing so, you are ensuring the employee has all the information they need in order to respond fully to the allegations, and therefore enabling you to make a fair & just decision as to a suitable outcome.

Not raising issues promptly

Often we have employers wanting to raise concerns with an employee for an event/act that took place a long time ago, specifically when the employer has been aware of it since the event.  The problem with waiting too long to raise your concerns is twofold – firstly the difficulty the employee may have in recollecting events from so long ago and secondly, the questions it would raise around the seriousness of the issue if the employer has taken so long to raise it.

Mismatching the disciplinary outcome with the severity of misconduct

It is important that the severity of the misconduct results in an appropriate outcome.  A minor offence for example from an employee with a previously clean record would be unlikely to justify dismissal.  On the other hand a one-off act of serious misconduct could potentially lead to dismissal.  It is important to weigh up the severity of the issues, the employee’s history, the damage done to the employment relationship and the impact on the business.