Through our Code of Conduct and policies BigApple encourages the highest standards of integrity, ethics, professionalism and achievement. Through HDP we agree challenging performance and development targets. It is the responsibility of Managers to uphold those standards 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/HR at the outset in such cases. Also make yourself aware of the Legal Considerations. Employees 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.
1. The preliminary investigation is to establish whether there is any substance to the allegations. If there is substance we need to plan the disciplinary process, get the right people involved, then advise the employee(s). You need to; Advise and involve your Manager. 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 Stand-down is required (refer Step 3). Agree your investigation plan. [Note: you may talk to the employee themselves and enquire about the matter as part of your preliminary investigation].
Enough evidence? After the initial investigation 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 and that disciplinary action is a potential outcome? Are you the right person to handle this? As the employees 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 involve your Manager in the process. Handle it now or later? A brief delay might be sensible if; the employee needs to cool off or you need to collect more evidence or involve other managers etc. Typically you will need time to gather further evidence before the Investigation Interview (Step 5) and the employee should continue working in the interim. In rare cases you might consider a Stand-down 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 or threaten witnesses). When the right people are involved and your investigation is planned its time to advise the employee 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 some other action may still be necessary including for example: Coaching, an informal reprimand or setting of expectations, training etc. Be sure to advise the employee of this outcome and that this is no longer a disciplinary matter.
2. Have a witness present and use the Advice to Employee of Disciplinary Process – conversation plan to advise the employee of: The allegations and potential impact on them if the allegations are sustained. The investigation process including the timetable. 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 employee’s or witnesses about the investigation. They can make any initial comments they choose. Confirm what you said with the Invitation to Disciplinary Meeting Letter. If you believe a Stand-down on pay is appropriate to facilitate the investigation take the actions in Step 3 as part of your advise to the employee conversation.
3. Stand-down allows you, where their presence might compromise the process, to require the employee not to attend work during the disciplinary process. Risks that might justify a Stand-down include risks such as; The employee tampering with evidence, influencing witnesses damaging property etc; The misconduct being repeated; Concerns for the employees safety; A cooling down period (for example after fighting or an abusive exchange); Some other risk to BigApple business. Before you decide on a Stand-down consult the employee, as part of the Advice to employee of disciplinary process conversation, about the need for the a Stand-down and consider their response. Confirm your decision using the Stand-down Letter. Stand-down 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 employee is required to remain available to the investigation and assist as required].
4. Make 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 employee may make and investigate its likely strength or weakness. Document your steps and evidence so you can present them to the employee 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 the employee knew the rule/standard; is the standard reasonable?; do others meet the standard?; was the employees training and support reasonable? etc. Give all relevant information you have gathered (statements from others, documents showing the breach etc) to the employee before you meet with them so they can respond at Step 5.
5. Invite the employee to a meeting. Follow our Tips for Conducting the Full Investigation and use the Investigation Interview – Conversation Plan. Key elements are; Ensure they fully appreciate the significance of the interview and 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 employee. 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 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 employee 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 employee 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 employee to provide any mitigating factors that they want you to consider when you decide the outcome. Then adjourn and decide (after discussion with your manager). See our Tips for deciding on a penalty. Use our Issuing a Warning Conversation Plan and the appropriate Written Warning or Dismissal on Notice letter.
Mitigating factors you should consider are; 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?) Employee 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 employee?) Conduct further investigations if required.
8. Call a meeting to convey the decision to the employee (and their representative). See our Tips for Implementation and ensure you cover the following; Summarize 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 in writing after the meeting using either the appropriate Warning Letter or Dismissal on Notice Letter.