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Disciplinary Procedures in NSW Awards & Enterprise Agreements

Introduction

Formal written disciplinary procedures can set out clear processes for employers to raise and deal with employee performance in an appropriate manner. These examples cover disciplinary procedures introduced in four recent NSW enterprise awards.

A five-step procedure

A Sydney-based manufacturing company has adopted a five-stage disciplinary procedure, along the following lines:

Stage 1 states that any employee who exhibits unsatisfactory performance or behaviour shall be counselled, in order to outline the expected standards. The employee is then offered assistance and guidance in achieving those standards.

Stage 2 creates a confidential written record of the counselling. The employee receives a copy of the record, and is given an opportunity to comment either in writing or orally. The record is placed on the employee’s personnel file only where the employee has been given the opportunity to respond.

Stage 3 allows the employee adequate time to demonstrate a willingness to improve the performance or behavior. If, at the end of this period, no willingness has been demonstrated, then disciplinary action (up to and including dismissal) may be undertaken.

Stage 4 of the procedure states that nothing in the procedure limits the rights of the company to summarily dismiss an employee for serious and wilful misconduct.

Stage 5 ensures that the employee is entitled to have an available employee present as a witness throughout the process. A union representative may also be informed, providing confidentiality is not breached.

The purpose of a disciplinary procedure

Two enterprise agreements contain clauses which show that disciplinary procedures are not intended to punish employees.

An enterprise agreement covering workers at a warehouse, states that counselling and discipline should be corrective in nature. The purpose of the disciplinary procedure in the agreement is to obtain compliance with the established rules of conduct.

A second enterprise agreement, covering a manufacturing company, states that the purpose of the counselling procedure is to correct under-achievement of goals and obligations. These goals may be performance-related, or matters relating to the contract of employment (e.g. time-keeping and absenteeism).

Allocating rights and responsibilities

A company in the cosmetics industry clearly sets out the rights and responsibilities for the use of the disciplinary procedure in its enterprise agreement. The employee’s immediate supervisor is to undertake the initial counselling session and explain the nature of the complaint to the employee. The supervisor also must ensure that the employee has a union delegate or other person present.

The employee has the right to respond to the complaint, but is also entitled to remain silent. Any contribution made by the employee is retained on their record.