• A disciplinary hearing is a formal hearing organised by your employer to discuss any issues relating to your work including:
  • underperformance;
  • inappropriate or unacceptable behaviour;
  • sexual or physical assault;
  • verbal abuse;
  • professional misconduct; or
  • unsatisfactory professional conduct.
• If you have received a written notice of attendance you must attend the hearing.
• You may request a more appropriate date and time be set aside for the hearing if you cannot attend the listed date and time.

• Disciplinary actions usually include:
  • additional training;
  • formal written warning;
  • an order for a formal apology;
  • counselling;
  • fines;
  • transfer, suspension or probation; or

in most serious cases termination of employment.

• All parties have a right to representation at a formal disciplinary hearing. You should contact the federation or trade union that you may be part of as soon as possible.
  • Some federations or trade unions offer their members support and representation in certain matters.

• Remember that as the employee you have the right to have a support person present with you at every stage of the disciplinary process.
• If you are under 18 years of age then your parent, guardian or another adult should be present with you at the disciplinary hearing as your support person.
• An employee or an employer will usually only seek legal representation for formal disciplinary hearings.
• If you are facing a formal disciplinary hearing and require legal representation our LegalPlan™ membership will allow you to ask lawyers for a Fixed-Fee Quote on your matter.

• In most cases you are allowed to challenge the outcome of a hearing.
• Many industries have specific policies and committees that regulate disciplinary hearings and appeal.
• You should speak to a lawyer as soon as possible to discuss your options.
  • Do not delay as most appeal processes are subject to time restraints. The applicable period is usually 14 days.

• Your disciplinary hearing outcome notice should list allowable grounds of appeal and the procedure that must be followed.
• Depending on your individual matter you may also be entitled to initiate an appeal at the Fair Work Commission or the Fair Work Ombudsman.
• You may also choose to litigate the matter in court.
• It is always a good idea to seek legal advice before commencing any formal complaint or appeal processes.

• Most workplaces adopt guidelines to assess the seriousness of an employee’s misconduct before determining the necessity of summary dismissal.
• Generally the following actions may lead to immediate termination of employment:
  • large scale fraud;
  • theft;
  • intentionally leaking sensitive information;
  • consistent failure to maintain or reach a reasonable standard of competency at the workplace; or
  • sexual harassment.
• Making minor mistakes is normal in everyday life. Most workplaces adopt policies that help the offending employee improve their conduct.
• Minor mistakes may lead to:
  • an initial warning being issued;
  • counselling or coaching; or
  • the imposition of disciplinary action other than termination of employment.
• Examples of minor mistakes include:
  • poor customer service;
  • threatening or abusive behaviour; or
  • occasional tardiness (lateness) to work.  

• Performance related conduct is related to the employee’s performance in fulfilling their professional expectations. This includes:
  • regularly attending meetings;
  • consistently meeting any set targets;
  • delivering work of an expected standard;
  • meeting work deadlines; and
  • fulfilling all the expectations of your role.
• Inappropriate conduct or misconduct is related to the employee behaving outside the standards expected at the workplace. Normal standards include:
  • behaving appropriately at the workplace;
  • wearing suitable clothes or uniform to the workplace;
  • maintaining confidentiality;
  • not engaging in any fraudulent behaviour;
  • working honestly;
  • ensuring that the workplace is secure at all times such as locking the door properly at the end of the day; and
  • not using company resources unreasonably and inappropriately.
• If you have any concerns about what is appropriate you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.

• There is no strict rule for the number of warnings an employer must give to an employee prior to commencing any disciplinary action.
• An employer should remember that workplace discipline should aim to help an employee improve their behaviour or conduct.
• Generally three warnings are considered sufficient.
• It is the employer’s responsibility to ensure that their employees understand the seriousness of the consequences of their underperformance or inappropriate conduct. 

• Most workplaces have specific disciplinary action policies that list any time restraints that must be adhered to.
• An employee cannot be asked to attend a disciplinary hearing without being given sufficient notice and time to prepare a defence.
• Usually three business days is considered to be sufficient notice but this may vary depending on the severity of the offending conduct. 

• Both terms are often used interchangeably and the difference between them is simply a matter of workplace policy.
• If you work in a small workplace you may be issued a notice to attend a disciplinary meeting. In that meeting the following people will be present:
  • your employer;
  • you;
  • your support person or union representative if any; and
  • a person to take minutes of the meeting.
• If you work in a medium or large workplace you may be issued a notice to attend a disciplinary hearing. An independent committee may investigate the matter and conduct the disciplinary hearing. These formally conducted meetings run in a similar way to a court hearing.
  • At a disciplinary hearing the following people will usually be present:
    • chairperson;
    • employer or their representatives;
    • employee, their representatives and support person;
    • a person to take minutes of the meeting; and
    • any person who is a witness.
• In some industries disciplinary hearings and disciplinary actions may be regulated by a third party. That third party (such as a tribunal or board) usually has the power to impose severe penalties.
  • For example in NSW only the NSW Civil and Administrative Tribunal has the power to remove or suspend a doctor from the medical profession. 

• The following issues should be addressed at a disciplinary hearing or a disciplinary meeting:
  • the specific requirements of the role and how they haven’t been met;
  • any mitigating (reducing/excusing) factors that the employee wishes to address. For example:
    • personal problems;
    • health problems;
    • difficulties at workplace; and
    • workplace issues such as bullying;
  • what steps should be taken to improve the employee’s performance and conduct and whether the employer can assist in any way;
  • a time frame for improvement which may include:
    • a detailed action plan; and
    • review or follow-up meetings; and
  • the consequences for future non-compliance.

• An employee should not accept the allegations made against them unless it is a very clear case.
• An employee should always seek legal advice regarding their specific matter and the consequences of accepting allegations made against them.
• An appropriate penalty may be imposed if the employee does decide to accept the allegations.
• The employee may be given an opportunity to offer any mitigating (reducing/excusing) factors that may lessen the penalty.
• The employee may also be informed of their right to appeal the decision and the procedure that must be followed.
• The employee will be provided with a written notice of the decision at the conclusion of the meeting.  

• Mitigating factors are matters that:
  • may affect a person’s particular situation; or
  • factors that may have caused a person to engage in conduct that has led to disciplinary action.
• Such factors aid a person’s case and are usually presented to lessen a penalty that may otherwise be imposed against them.
• Mitigating factors that affect a person’s particular situation include:
  • personal circumstances;
  • financial difficulty;
  • health issues;
  • term of employment;
  • age;
  • attitude to the offence;
  • mental health; or
  • work history.
• For example a person who is frequently late to work may argue that due to financial difficulty they must catch public transport and the bus is very unreliable. They deserve to have this taken into consideration to lessen the penalty they may receive.
• Mitigating factors that may relate to the offending conduct itself include:
  • workplace bullying;
  • moral values;
  • position at workplace; or
  • your relationship with the employer.

• Aggravating factors are issues that may count against an employee at a disciplinary hearing such as:
  • the seriousness of the offending conduct;
  • past history of offending conduct;
  • position of the employee in the workplace; and
  • length of offending conduct.
• For example in a case of verbal abuse it would likely be considered aggravated circumstances if the offender was a manager and they were abusing their staff. This is because they are in a position of authority and their staff may be too frightened to stand up for themselves for fear of losing their job. The manager’s offence should be considered more serious than if it was one co-worker to another. 

• An opening statement is a necessary part of a formal disciplinary hearing. It helps introduce the issue, the evidence and the consequences of the conduct of the other party.
• The opening statement should be addressed to the chairperson.
• It should include only factual matters and should not be argumentative.
• It should brief and follow a logical structure.
• An employer usually has the right to give the first opening statement. This may vary depending on the chairperson and the procedure guidelines.
• The following matters should be addressed in an employer’s opening statement:
  • description of the offending conduct;
  • evidence that will be relied on to prove the offending conduct; and
  • the impact of the offending conduct on the workplace.
• The following matters should be addressed in an employee’s opening statement:
  • summary of the material facts of what is being alleged; and
  • summary of the material facts that the employee is alleging.
• Having a timeline of events is a good way to summarise the facts.

• An employee should first look at the workplace disciplinary policy to see if there are any internal grievance procedures that must be followed.
• An employee may also lodge a complaint to an external independent committee such as:
  • the Fair Work Ombudsman; or
  • the Fair Work Commission.
• If the employee believes that they have been discriminated against they may also complain to the:
  • Australian Human Rights Commission; or
  • a state tribunal with jurisdiction over anti-discrimination such as the NSW Civil and Administration Tribunal for NSW complaints.
• It is imperative that an employee seeks legal advice as soon as possible as many of these procedures are subject to strict timeframes.
• Our Phone a Lawyer service may be able to put you in touch with a lawyer for a preliminary consultation.