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Ask Maddy: Understanding disciplinary proceedings

Ask Maddy: Understanding disciplinary proceedings

Madeleine Harradence, Assistant Secretary of ANMF (Vic Branch)

Working in nursing or midwifery can expose you to allegations of poor performance or misconduct, which may result in disciplinary action. Most enterprise bargaining agreements (EBAs) contain a process for dealing with poor performance or misconduct, that you and your employer must follow.

Having an allegation of poor performance or misconduct made against you can be distressing and confronting. It is important that you know your rights and contact ANMF Member Assistance as soon as possible for assistance.

Can I just be called up to the office and disciplined?

EBAs usually require your employer to notify you of the allegations, and provide supportive evidence, before you meet. If you attend a meeting for a ‘chat’ and discover it is a  performance/misconduct hearing, ask for the meeting to be re-scheduled and that your employer put their concerns in writing. If you don’t feel comfortable doing that, contact  the ANMF promptly at records@anmfvic.asn.au.

Does my employer need to do a proper investigation?

The Fair Work Act does not allow an employee in their first six months of employment to pursue unfair dismissal, the same can also apply if you are on a fixed term contract.

However, most EBAs require that a performance/misconduct procedure apply, prior to terminating your employment. It is critical that you seek ANMF advice as early as possible so that we can assess your circumstances and give you the best support.

If it is a performance issue, typically with ANMF support an employer will propose a performance improvement plan with educational sup[p[ort and clearly defined goals.

If it is a misconduct issue, and your employer does not conduct a proper investigation or provide you with enough information to defend the allegations, then they will have denied you ‘procedural fairness’. Your ANMF Organiser can address this with your employer, or if necessary EBAs generally allow a challenge in the Fair Work Commission.

What is procedural fairness?

The principles of procedural fairness or natural justice include:

  • to be given prior notice of the allegations in writing and materials which form the basis of the employer’s concerns
  • to be given a fair opportunity to respond to the allegations
  • the decision maker should not be biased.

Members have a right to representation, including an ANMF representative.

What happens if I am disciplined?

  • If the allegations are serious, you may be stood down on full pay during the process.
  • If you receive a performance/misconduct notification, contact ANMF as soon as possible for assistance and support.
  • Notify your employer if you will be taking an ANMF representative to the meeting.
  • If the disciplinary letter refers to a policy breach, it is helpful to obtain a copy of this policy ahead of the meeting and provide it to your ANMF representative
  • If you raise issues during the meeting that warrant further investigation, the employer may need to investigate those further.
  • Following the performance/misconduct process, the employer must inform you of the decision.
  • The options that an employer can use are limited by the performance/misconduct procedure, from counselling, performance plans, through to a warning, or in cases of serious misconduct, dismissal.

What can I do if I am feeling stressed?

ANMF recommends getting support from Nursing and Midwifery Health Program Victoria 9415 7551 or admin@nmhp.org.au. This is a free and confidential counselling service. You can also see your GP and discuss your health concerns.

How long does a warning last?

Most EBAs limit a warning to 12 months, or in some cases 18 months. If you are found  to be repeating the course of conduct that resulted in the first warning within that time, you may   receive a second warning. If you repeat that course of conduct again, you may receive a final warning. Another occasion, and your employer can dismiss you. However if you are in the first six months of employment these may not apply, and you would need workplace specific advice.

This information is of general nature, however the principles should generally apply.

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