Employee Disciplinary Matters:

There are many obligations and behavioural standards for employees which are required by contract, statute and through employees’ implied duties such as of obedience and cooperation, fidelity and good faith founded and the obligation to follow lawful and reasonable directions.  Matters of employee misconduct may constitute grounds for discipline and dismissal. An employer has an obligation not to unreasonably cause detriment to their relationship with their employee. A qualified Employment Lawyer may be able to assist you throughout any employment disciplinary action that you may be involved in.

Disciplinary action in the employment relationship has been described as ‘reasonable lawful action taken against an employee in the nature of, or promoting, discipline’. The power to discipline for poor performance or misconduct has its roots in the high level of control exercised by masters over their servants prior to the shift to the conceptualisation of the employment relationship as one of contract. When this shift took place during the industrial revolution, there came a wider recognition of the separation between the employee’s work and personal lives, and of a now restricted scope for the employer to exercise control over the employee’s conduct, particularly out of hours. The right to discipline for misconduct or poor performance continued to be recognised, but it became conceptualised as flowing from express and implied contractual duties owed by the employee. The obligation of good faith and fidelity and, more recently and controversially, the obligation of mutual trust and confidence, require that an employee refrain from activities inside and outside working hours that may harm the interests of his or her employer. Proper legal advice in this area of law may be necessary to ensure that you thoroughly understand the rights and liabilities or your employer or employee.

An employer’s right to discipline stems from common law but has been modified by legislation and case law, and through bodies such as the Australian Industrial Relations Commission (AIRC). In some case, legislation is prescriptive in this area of Employment law, for instance what constitutes misconduct justifying dismissal without notice has been codified in federal legislation. Employee’s action of discipline and/or dismissal for out of hours conduct remains possible for instance breach of the employer’s social media policy outside of work hours- and this is a very controversial area of employment law.

An employee can be discipline for a number of reasons to include non-performance of duties, misconduct or breach of their obligations or duties. There may be a proper protocol or procedure that the employer must follow in providing any warning or disciplinary meetings. Often there may be a requirement for a verbal warning before any written warning is provided.  Should the misconduct not be resolved or remedied, the employee can face termination. In some instances such as a matter that involves unfair dismissal, an employee has a right of reply to allegations of misconduct. Financial sanctions are not usually permitted as at common law there is no power to stand a disciplined employee down from employment without pay. There may be requirements for procedural fairness in discipline and dismissal stemming from industrial law and bodies. A qualified Employment Lawyer may be able to assist in this often stressful and taxing employment law related area.

If you need further legal advice on your employment law matter, you may book an appointment with us by telephone on (02) 9233 4048 or by email to info@navado.com.au. 

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