10 basic rules to follow if you are confronted with a disciplinary meeting
It’s easy for employers and employees to make mistakes at disciplinary meetings.
Disciplinary meetings are invariably demanding and, in the stress of the moment, it is easy for both the employer and the employee to make mistakes. Indeed, many employers have little or no experience in the conduct of disciplinary meetings. In these circumstances, it is important that you keep your wits about you.
You need to minimise the risk of being exposed to more serious allegations as a result of the disciplinary meeting
By applying the principles below, you will at least help minimise the risk that you will be exposed to even more serious allegations. You are also sending the message that, while you are willing to participate in the process, you are not going to be taken advantage of.
1. Is it an operational meeting or a disciplinary meeting?
Clarify whether it is an operational meeting or a disciplinary meeting. If you are reassured that it is simply an operational meeting, but it is allowed to develop into a disciplinary meeting, bring the meeting to a close and ask for an adjournment. You could simply say that the absence of any agenda for such a disciplinary meeting has left you ill-prepared and that, in the interests of fairness, you would prefer to see a list of allegations/agenda before attending a rescheduled meeting.
2. Arrange for a friend or colleague to take minutes of the disciplinary meeting
Make sure that proper minutes of the disciplinary meeting are taken by a friend or colleague whose role is not to participate in the meeting but simply to take accurate notes. These minutes need to record the time, date and place of the meeting, who was present (together with position titles) and who said what to whom. They should be prepared as soon as the meeting is over.
3. Do not agree to either audio or video recording of the disciplinary meeting
Do not agree to the disciplinary meeting being either audio or video-recorded. The usual rationale for recording the interview is that it provides an accurate record of what was discussed.
However, that is the reason why you should have a competent notetaker on hand. The problem with recording devices is that you don’t know how the recording may be subsequently used, how it is to be stored, who will have access to the recording, how it may be subsequently distributed, and whether it may be subsequently edited.
Be mindful that, notwithstanding your refusal that such devices be used, they may be present anyway.
4. Do not allow yourself to be pressured to accept resignation or demotion
Do not allow yourself to be pressured into resignation or accepting a demotion/change of duties. If you find yourself being pressured into accepting these outcomes, ask for an amended Position Description so that you have an opportunity to consider what is being proposed and say that you will revert to them. In the meantime, you should seek urgent legal advice.
5. Say as little as you can consistent with answering questions
If any questions are put to you, reply to them, as a properly considered answer may result in the allegations being dropped. However, do not volunteer additional information as this will only prompt further questions. You should say as little as you can consistent with answering the question.
The only time you should refuse to answer a question is when it goes to a matter involving the commission of a criminal offence. If this occurs, you are entitled to rely on the privilege against self-incrimination. This privilege means that the witness cannot be compelled to answer questions that may show that they have committed a crime for which that person may be charged. This is so if the answers may place you in real and appreciable danger of conviction.
For example, if you are being accused of obtaining a financial advantage by deception or serious assault, you need to be aware that your answers may be forwarded on to the police and form the basis of a criminal prosecution. In these circumstances, you should decline to answer the question relying on the privilege against self-incrimination. All you have to say is that, with respect to any such matters, you are relying on that privilege and will decline to answer any questions that relate to those matters until you have obtained legal advice. You should emphasise that you are happy to answer any other questions.
6. Avoid making admissions
Avoid making any admissions e.g. “I guess I could have been more productive…”. Deflect the question by saying that you need time to reply with a considered response.
7. Request a written outline of the agenda prior to the commencement of the disciplinary meeting
Prior to the commencement of the disciplinary meeting, request in writing a written outline of the agenda and full details of any allegations. If you subsequently receive verbal indication that this will be denied to you, write to the Chairman of the meeting noting that your request has been refused.
8. Seek legal advice regarding your options if you are badly treated, terminated or demoted during the disciplinary meeting
Don’t assume that, if you are badly treated during the disciplinary meeting, or if the meeting results in your termination/demotion, you will have access to the unfair dismissal provisions of the Federal Fair Work Act 2009. It may well be that you are locked out of this system. You might well, however, have a cause of action to sue for damages at common law, or have the basis for an Adverse Action/Competition and Consumer Act claim. This will need to be evaluated by your lawyer.
9. Call a halt to the disciplinary meeting if it becomes heated or abusive
If the disciplinary meeting becomes particularly heated or abusive, call a halt and demand that it be rescheduled. If you need to walk out of the meeting, you will need to send an urgent memo to the meeting Chairman recording why you walked out, strongly protesting about the treatment you received and seeking his or her assurances that it will not happen again and inviting them to reschedule another meeting.
10. Insist to be provided with written confirmation of the outcome of the disciplinary meeting
Insist that the Chairman of the meeting writes to you to confirm the outcome of the meeting. If such a letter is not received, you should write your own letter with legal assistance.
At the end of any disciplinary meeting, you should certainly prepare your own memo of the meeting. That should confirm the date, time, place and persons present at the meeting and who said what to whom. That should be prepared with the assistance of your notetaker while the subject of the discussion is still top of mind.
It is advisable to seek legal advice prior to a disciplinary meeting
Prior to attending any disciplinary meeting, you should obtain legal advice as to your legal/strategic position and how best to approach the meeting. It’s a mistake to participate in a disciplinary meeting having made false assumptions about the strength of your legal position.
Executive Rights Employment Lawyers have extensive experience in advising our clients as to how to handle a Disciplinary Meeting. Please don’t hesitate to contact us to discuss your matter.
From our clients
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice regarding your own situation.