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Preparing for a Disciplinary Process

You've been invited to a disciplinary meeting: terrifying stuff.

I'm not going to sugar coat this: disciplinary meetings are stressful. Whether you're facing a warning, final written warning or termination of employment; it is an adversarial process and you are in an inherently vulnerable position.

You can take back your power by being prepared.

I may not be able to represent you, and I may not be able to give you advice on the legalities of the basis for the disciplinary process: but I can empower you by preparing you for the process.

Employers frequently play the system, and I will unashamedly teach you how to play the same game. I like to liken this process to a game of poker: it's all about tact, skill and patience.

Representation: Don't do it unless absolutely necessary

The first question people often ask is whether they need representation. My answer is that you should only get representation if you genuinely do not believe you can mentally and emotionally represent yourself.

I take a very pragmatic approach to this, and the first question is always: what is your desired outcome?

Don't spend thousands of dollars on representation. It's not worth it. Remember you can bring a support person, and that this support person can quasi-represent you if you feel that you need a hand.

Want: retain role

If you want to retain your role, self-representation can seem friendlier and more genuine than engaging in a typically litigious disciplinary process. Unless you have engaged a very skilled representative, this process is often inherently destructive of the employment relationship. Therefore, I would generally recommend that employee's initially engage in the disciplinary process self-represented. This is especially important if you are in a role where you need to show strength, leadership and trust: it can be an opportunity to prove yourself.

Want: termination

If you don't want to retain your role, and you'd rather raise a personal grievance (if you have grounds), then you are better to let your employer run their failed process. If you engage in representation, your employer will likely do the same: resulting in a flawless process and a better attempt to justify the termination of your employment.

Why give them that opportunity? Let them shoot themselves in the foot. It's not your job to run their process for them. It's not your job to ensure you are treated fairly. It's theirs.

Record the meeting. Look, here's the guts of it: you can record a meeting without informing your employer. You should tell your employer you are recording, as this would be considered "good faith." However, legally, you are able to record any conversation that you are a party to. The question in legality comes down to why you made the recording, and what you intend on doing with it.

You can record a meeting to ensure you have the most accurate depiction of events. However, you shouldn't record a meeting because you intend on baiting your employer into admitting something.

You can retain a copy of that meeting if it is for private purposes and to refamiliarize yourself with the contents of the meeting. You can't retain a copy of that meeting if you intend on sharing it on social media.

The Employment Relations Authority will admit a covert recording as evidence, as it is the most accurate version of events and it would be prejudicial to the employee not to admit the recording.

The preliminary decision

However; with either option, there is an option to engage representation during the process: the preliminary decision.

If I can give you one piece of advice, it is to ask for a preliminary decision. The preliminary decision is often provided by letter after the first meeting. It will provide you with the employer's view of your feedback, and will provide a preliminary decision.

This is your opportunity to engage legal representation: it will be fairly last-minute, but there are many advocates like myself who will make themselves available for pressing matters.

It's important to ask for a preliminary decision because you will then be able to make an informed decision as to whether to engage representation. Many people think: I don't want to pay for a representative if they aren't going to terminate my employment. However, the preliminary decision will let you know exactly what the employer is thinking.

In all honesty, it is not often that a preliminary decision will be overturned: however, it can be a good time to bring in legal representation if you are hoping to raise a personal grievance. This is because the employer is required to consider "all the circumstances" before terminating your employment, and you will have a stronger personal grievance if these circumstances and legal arguments are put to your employer before your employment is terminated.

It is also a good opportunity for your representative to negotiate you an exit from the company which can involve your resignation, a reference, a payment to you and a payment towards your legal fees.

The Invitation Letter: What you need to know

Once you've decided that you're going to self-represent, the next thing you should do is analyse the invitation letter. You need to ensure you have everything you need to prepare for the meeting.

Do not attend a meeting until your employer has provided you with the following information:

  • The allegations. You want to know why your conduct is concerning, and therefore, these allegations should relate to company policies or terms in your individual employment agreement.

  • Copies of the relevant company policies or clause in the individual employment agreement. You should already have this information, but if not: ask!

  • Information which supports the allegations. If the allegations relate to evidence provided by another person, you are entitled to receive that information in full: whether that be a transcript of a conversation or whether that be a written statement provided. Whatever the "evidence" is, you are entitled to question it; and therefore you must have it.

  • Whether the employer believes that the allegations amount to misconduct or serious misconduct.

  • Whether the employer believes that, if proven, your conduct could amount to a warning, final written warning or termination of employment.

If you believe that there is other relevant information that will assist you in preparing for the disciplinary meeting, ask for it! You might want the employer to question a specific employee, or you may want access to the CCTV footage. Perhaps you are currently suspended, and you need access to your work emails.

If you are unable to attend the proposed meeting because you do not have this information, then you will need to request an extension. Your employer is required to fairly and reasonably accommodate this request: however, it is common for employers to refuse this request.

If this is the case, you should still attend the meeting; knowing you have your requests in writing. This will assist you later if you choose to raise a personal grievance. You can also verbally raise your concerns in the meeting; knowing the meeting is being recorded.

Preparing for the Meeting

Great, you're ready to prepare for the meeting.

I recommend that you write your preparations down, and that you speak to them at the meeting. If you are comfortable, I would also recommend that you provide your written preparations to your employer: this is to ensure that there are no miscommunications.

When you are preparing, there are a few things you should focus on:

  • Your view of the facts.

  • That, on the balance of probabilities, your view of the facts is the true version. You might need to be creative about this, and scrutinize the evidence. If the employer is relying on statements made by employee's, it might be helpful to discuss your relationship with those employees; especially if you believe there is a reason they are lying or exaggerating the situation.

  • Whether there are any other circumstances your employer should consider. It's OK to admit fault. It's OK to admit you made a mistake. However, you should let your employer know the full story. Your employer is legally required to consider "all the circumstances", and therefore it will be important if you were stressed due to a bereavement, a breakup, mental health, etc etc.

  • Your previous employment history. If you've been a great employee with no disciplinary processes, you should highlight this.

  • That you can be trusted in continuing your employment. The very basic rule is that your employer should not terminate your employment unless they can show that the trust and confidence in the relationship has been destroyed.

It is important to try to be as impartial as possible. You might want to talk through your preparations with a friend or family member, to ensure that they are reaching the same conclusions as you.

Please remember it's not always about being "right" and "wrong". I tend to talk about the truth between truths. It is possible that both parties are right; but that there has been a miscommunication or an exaggeration. Be humble where needed.

You got this.

The Meeting: What to expect

Nervous? Wear your best power outfit. It doesn't have to be a suit and tie, it just needs to be something that makes you feel empowered and strong.

There is no set rule as to how disciplinary meetings run. Some employers prefer a "tick box" approach, where they will control the meeting by asking the required questions. However, in these situations you must remember that it is your meeting. It is your opportunity to be heard. If you need to, take control of that meeting: be polite, but firm, that you want the opportunity to speak uninterrupted.

Disciplinary meetings may become heated. It's okay to be frustrated, but it's not okay to become abusive and aggressive. If you require a break, you can ask for it. If you feel that you are out of your depth, you can ask that the meeting temporarily conclude while you seek legal representation.

If new information or allegations come up in the disciplinary meeting, you have the right to ask for the meeting to be postponed until you have had the fair opportunity to review that information.

If you feel that your employer should conduct further investigations as a result of information discussed at the disciplinary meeting, you should ask for it. If your employer is questioning you on someone else's statement, you have the right to ask your employer to re-question that witness.

What you should expect: the meeting will conclude and your employer will go away and genuinely consider your feedback.

What not to expect: a final decision.

What not to expect: an offer to resign.

What not to expect: an offer to be paid to resign.

If any of the above occur, I hope you have been recording the meeting; because you'll be wanting to add this to your personal grievance.

If you have requested further investigations, you will have an opportunity to provide feedback on that information before a final decision is made. Sometimes, it's possible you may have a number of disciplinary meetings before a preliminary decision is provided.

You did it!

You will then get a preliminary decision by writing after the meeting. You can then choose whether to engage in legal representation or whether to respond to the preliminary decision yourself.

Personally, I prefer to respond to preliminary decisions by writing; but you may prefer to have a meeting, and that is your right. Do what suits you best.

I hope that, one way or the other, the outcome is a good one.


Legal AF Limited t/a Ashleigh the Advocate

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