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Managing conduct and performance

Managing conduct and performance

Thomas Singleton, Lawyer, Gordon Legal

Being subject to disciplinary allegations at work can be stressful and upsetting. These allegations may result in disciplinary action such as a warning or even, in some cases, termination of employment.

Most enterprise agreements set out a process that an employer must follow when the employer has concerns about an employee’s performance or conduct. The process is intended to provide you (the employee) with procedural fairness and natural justice. In substance, this means that the employer needs to give the employee a reasonable opportunity to provide a full response to the allegations and consider that response.

If your employer does not follow that process set out in your enterprise agreement, it is not giving a fair opportunity to respond to the allegations.

This article will focus on the process set out in the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (the Public Sector Agreement). However, if you are not employed in the public sector, you should check what enterprise agreement applies to your employment.

What must an employer do when conducting a fair investigation?

  1. When investigating concerns about conduct or performance, the Public Sector Agreement requires an employer to:
    advise you of the concerns and allegations in writing;
  2. provide you with all material that forms the basis of the concerns before seeking a response from you;
  3. ensure you are provided a reasonable opportunity to answer any concerns, including a reasonable time to respond;
  4. ensure that the reason for any interview is explained to you; and
  5. take reasonable steps to investigate your response.

Importantly, according to most enterprise agreements, you are entitled to be represented by the ANMF during any investigation into your conduct or performance.

The Public Sector Agreement sets out a different disciplinary process for employees who have been employed for less than six months. Generally, an employee who has not completed the minimum six-month employment period (or 12 months in the case of a small business), may be in a more precarious position with respect to disciplinary allegations.

If the allegations are serious, you may be stood down from work with pay while your employer investigates the allegations.

Contact your ANMF Organiser

You should seek the support of your ANMF Organiser as early as possible to make sure that your employer follows the proper process from the beginning of the investigation. In practice, this means you should contact ANMF Member Assistance as soon as you are informed there are allegations about your performance or conduct.

What are the possible outcomes?

If, after the investigation phase, your employer considers that disciplinary action may be warranted, the Public Sector Agreement requires the employer to:

  1. notify you in writing of the outcome of the investigation;
  2. give you a reasonable opportunity to provide an explanation, including any mitigating circumstances.

The employer must consider this information and decide whether disciplinary action is in fact warranted.

If disciplinary action is warranted, an enterprise agreement generally provides what disciplinary steps the employer can take. The Public Sector Agreement provides that your employer may do the following (depending on the seriousness of the allegation):

  1. counsel you;
  2. give you a first written warning;
  3. give you a second written warning if you received a first written warning in the last 12 months relating to the same course of conduct;
  4. give you a final warning if you received a second written warning relating to the same course of conduct in the last 18 months;
  5. terminate your employment if conduct for which you received a final warning relating to the same course of conduct in the last 18 months is repeated.

If the employee’s conduct amounts to ‘serious misconduct’, the employer may terminate your employment without notice or move straight to a final warning without following the preceding steps. This applies where the only alternative is dismissal.

‘Serious misconduct’ is defined by the Public Sector Agreement and the Fair Work Act. It is not whatever the employer may consider to be ‘serious misconduct’ and not all allegations regarding an employee’s conduct will amount to serious misconduct.

What if I disagree with the disciplinary process or the outcome?

If you believe your employer has not followed the process set out in the enterprise agreement or that the disciplinary outcome is disproportionate to the allegations, you may be able to deal with this via the dispute resolution procedure in that agreement. The dispute resolution procedure provides helpful ways to resolve a dispute between an employee and their employer. You are entitled to be represented by the ANMF in the dispute and should seek its guidance and assistance.

If your employment was terminated, you should contact the ANMF immediately for advice about your options.

Your enterprise agreement gives you valuable workplace rights and important protections. However, getting the right help at the right time will give you the best possible opportunity to use those rights and protections to advocate for a favourable outcome. It will also provide you with support at a difficult time.