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Disciplinary Process Case Study

Any employee accused of misconduct should be accorded an opportunity to defend himself/herself before any action is taken. The disciplinary process is not an event but rather a system which includes various steps meant to ensure that the accused person is accorded a fair hearing (Taylor & Emir, 2015). In Australia, issues of misconduct as well as disciplinary processes are contained in the Fair Work Act 2009. The Act established the Fair Work Commission which deals with unlawful termination applications. For an organization to win a case for unfair dismissal of one of its employees, it ought to demonstrate that it followed due process (Fair Work Australia, 2010). Additionally, there should be no fault on its part. This paper examines the case study of Sam dismissed for misconduct but which decision was overturned by the Fair Work Australia.

Sam was accused of misconduct because she had struck a fellow employee and been out of work for a week without permission. The employer dismissed her without following due process as she was neither granted a hearing nor were investigations conducted to establish the veracity of the complaint. Various risks arise in this case. One of those is that it is hard to provide evidence of an assault. Additionally, there is a danger that without a fair hearing and an investigation, an unfair dismissal would not be found. To mitigate these risks in the future, it is critical that the organization follows a due process in termination which starts with the disciplinary process, investigations, hearing, and then making a final decision.

Reasons the Organization Lost Its Unfair Dismissal Case with Fair Work Australia

Gauging from the facts of the case, there are many reasons which made the Organization lose the unfair dismissal case heard by the Fair Work Australia. The organization failed to follow the due process in the disciplinary process. For instance, it did not carry out any investigations nor did it grant Sam a formal hearing. Additionally, no meeting or reviews were done, but Sam was just dismissed summarily. It is a requirement that an employee should be formally stood down before an investigation is commenced under section 524 and 525 of the Fair Work Act (Fair Work Act, 2009). There was no meeting conducted to warn Sam of poor performance. Such are the things which should take place before a dismissal but which never took place.

An organization ought to produce evidence supporting a termination. A termination which is not backed by proof of misconduct cannot hold. Fair Work Australia termed the dismissal as unfair because no evidence was adduced to the effect that Sam had struck the manager and stormed out of the meeting. At least there should have been some witnesses who attested to the event. Additionally, no documented evidence was produced during the hearing to show that there were any meetings or coaching sessions by the employer. The organization failed to produce evidence on the claims of misconduct by Sam. Specifically, no documents or written warnings were adduced as the agreements made between Sam and the manager were verbal. Such reasons left Fair Work Australia with no alternative but to declare the dismissal as unreasonable and unfair.

What The Organization Should Have Been Doing for It to Have Successfully Defended Its Position against Sam’s Claim of Unfair Dismissal

The organization should have done several things in defense of its position against the allegation of unfair dismissal by Sam. One of those it should have adduced adequate evidence which supported the allegation of misconduct against Sam. One of the ways in which the employer could have done that that is presenting witnesses to testify that Sam struck the manager. Physical evidence would also have been necessary. For instance, any CCTV recordings which captured the event of Sam striking the manager should have been provided. Such pieces of evidence would have justified the grounds for dismissal. Additionally, various documentation should have been presented to Fair Work Australia (Taylor & Emir, 2015). These should explain that the Organization followed due process and accorded Sam a fair hearing.

A performance review process should have been conducted. The first step after the misconduct would be to organize a meeting among all parties including Sam, the complainant and other members of staff. Preparation for the appraisal should then start by communication it to all employees. The next step would then be to conduct the actual appraisal followed by the documentation of the outcome of the assessment. The results of the evaluation should lead to the issuance of warnings to poor performing employees. Such a process would have provided the organization with evidence as to whether Sam is guilty of misconduct.

The employer should also have conducted a disciplinary hearing so that it could convince Fair Work Australia of its processes. In a disciplinary hearing, the manager should have reported the misconduct, and an investigation conducted to establish the veracity of the claims of misconduct. If the misconduct is established and major, Sam should have been stood down (sec 524), and the outcomes of the investigations reported to the employer. It is only after this step that the most appropriate disciplinary process would be applied. The organization would be doing so have successfully defended its position against the claim of unfair dismissal.

The Correct Way to Terminate Sam In Accordance With Legal and Organizational Requirements

The Organization should implement various policies and procedures to ensure that it terminates Sam in accordance with legal and organizational requirements. One of those is that it should develop policies on what constitutes misconduct and the differences between a major and minor misconduct (Acton, 2011). Additionally, the policy on the code of conduct should stipulate the punishment for minor as well as a remedy for significant misconduct. Moreover, it is critical that the policy is in tandem with the requirements of Fair Work Act lest it is considered illegal. To ensure that disciplinary hearings and terminations are fair and reasonable, the organization should follow due processes and act in accordance with the provisions of Fair Work Act, 2009.

In conclusion, claims of misconduct should be backed by evidence ad accused person should be accorded an opportunity to defend themselves. In the current case, Sam was dismissed by her employer on the grounds of misconduct. However, the dismissal was termed as unfair by the Fair Work Australia. The organization should have provided evidence of misconduct for it to mount a successful defense of Sam’s claims. In specific, they should have conducted a performance review and a disciplinary hearing before the dismissal. To avoid such dismissals from being labeled unfair and unreasonable, the Organization should formulate policies and procedures for investigating misconduct and ground for dismissal under the provisions of Fair Work Act.