Dealing with Rebellion

Your Options when it Comes to Unruly Employees

Karen runs a small management consultancy business. One of her more senior employees, who had worked for her for about six months, began misbehaving on the job. It started out with being late to work, chatting to friends on the phone whenever she felt like it during the day, then progressed to turning up to work drunk and going AWOL for entire afternoons and not answering her cell phone. When Karen tried to talk to her, she became very defensive and said she had some personal issues she was dealing with and Karen needed to give her space. Karen was frustrated and not sure what she should do.

What can an employer do when it comes to dealing with unruly and misbehaving employees?

Employers need to ensure that they follow correct steps when disciplining employees, to make sure they are not liable to pay out an employee who has been misbehaving. First, they need to ensure that they follow the specific requirements of any employment agreement with the employee.

In addition to the process in the employment agreement, the following steps should be followed:

1. Speak to the employee
Speak to the employee about their behaviour. The discussion can be either formal or informal, depending on how serious the misbehaviour or issue is. The employer needs to point out to the employee what aspects of their behaviour are unacceptable and should tell the employee what is expected of them. The employer needs to advise the employee that the kind of behaviour will not be tolerated and if there are any further allegations of inappropriate behaviour then formal disciplinary proceedings may be instituted.

2. Notice of formal disciplinary meeting
If the matter is too serious to warrant a discussion as in step 1 above, or the employee has already been reprimanded as above, then the employer needs to give the employee written notice that they are required to attend a formal disciplinary meeting at a set time and place.

The notice needs to set out what it is the employee is alleged to have done. In Karen’s case, she would need to spell out all of the separate allegations of misbehaviour. If possible, the employer should set out the clause in their employment agreement or policy manual of which the employee is in breach. The employer needs to let the employee know in the notice that they are entitled to have a support person present at the meeting. The notice should also set out the consequences if the allegation is proved. For instance, if it were minor then a warning, if it were major, potential dismissal. The employer should check the agreement as to whether they have the power to suspend the employee and whether it is necessary to do so. To be able to suspend an employee, the employer needs to have either that power in the agreement or a need to do so for safety reasons. This would be the case, for example, when an employee has assaulted another employee.

If an employer is suspending an employee they must give the employee the opportunity to comment on whether they think they should be suspended or not. The employer should put in writing that they are considering suspension and give the employee a timeframe to respond regarding that suspension. Once the employer has received the response, they should consider this, decide whether suspension is necessary and let the employee know of the decision.

It is very important to ensure that any notice given by an employer reinforces that the matters are only an allegation and should not indicate that the employer has reached any decisions about the employee at that stage.

3. Formal disciplinary meeting
At the meeting, the employer needs to explain that it is a formal meeting to investigate the employee’s alleged misbehaviour and should set out the allegations. The employer needs to ask the employee whether they wish to give any explanation or whether they accept or deny the allegations, and give them the opportunity to do so.

Once the employer has heard the explanation, denial or acceptance, they should advise the employee that they will consider the explanation and notify the employee of their decision. At this point, the employee’s involvement in the meeting should cease. The employer can then consider whether they need to make further enquiries or whether they are satisfied with the explanation

4. Result of the meeting
If the employer has decided that the allegations are correct then they need to decide what course of action to take. If the employer is satisfied with the employee’s explanation then they should notify the employee of that. The course of action will depend on the seriousness of the allegation(s), any particular steps outlined in the employment agreement and whether there have been similar problems or allegations relating to this employee before.

The employer needs to notify the employee of their conclusion. If the matter is serious then the employer needs to give the employee the opportunity to have input into the steps to be taken as a result of the decision.

5. Meeting for employee to give input into steps to be taken
The employer should set a time and place for that meeting if the employee does want input into the steps to be taken and again invite them to bring a support person. At that meeting, the employee is allowed to have input as to the steps to be taken. The employer should not give any indication that they have already made a decision.

6. Decision to be communicated
After that meeting, the employer should communicate the outcome to the employee at a further meeting and confirm that in writing. If the employer is issuing a warning then they should advise that if there is another lapse, further disciplinary action might be taken which could put their employment at risk.

The first warning should be a verbal one but should be confirmed in writing. If there is a second or subsequent warning, then this also needs to be put on the employee’s file. If the employee has been given a warning before and the employee is in breach of it, then the employer needs to advise the employee that the results will be at a more serious level.

Employers need to follow the above steps and not take any shortcuts, no matter how tempting they may seem. If an employer takes shortcuts then they will be liable to the employee for the breaches of the process, even if they were justified in taking disciplinary action against the employee. Their liability could include having to pay for lost wages, hurt or humiliation plus legal costs, and even worse, they may have to reinstate the employee to their position.

Fortunately, for Karen, she contacted an employment lawyer who guided her through the process and was able to resolve her issue with her employee.

Claire Coe
www.raineycollins.co.nz

For further information and help with the process, see:
Employment Relations Authority – www.employmentrelations.co.nz