How to Make Difficult Discipline DecisionsWednesday, September 7th, 2011
Making discipline decisions should be easy. You follow your procedure and then know whether or not the employee should be given a penalty. But what if that is not the case? What if you finish up feeling unsure? A record of poor performance or unacceptable attendance level is one thing, but what if the employee is accused of doing something, say stealing money, and you were not present but have to rely on circumstances and the statements of witnesses? Do the circumstances prove the matter beyond doubt? And are the witnesses absolutely reliable? Could they be mistaken? You may feel extremely uncomfortable if the sanction is dismissal with all the repercussions that may have on the employee’s family and prospects of future employment, and as a result you may feel that you have failed to do justice to the person.
Fortunately, in the world of employment the burden of proof is not absolute. If a person is charged with a criminal offence, the jury has to be satisfied of his or her guilt “beyond all reasonable doubt”. If there is doubt, the jury is required to acquit. But in the workplace you are expected to make your decision in disciplinary cases on what is called “the balance of probability”. Put simply, your decision may be based on your opinion of what happened, but that opinion must be well informed. If challenged, therefore, you must be in a position to prove that you did all you could to reach a fair decision. Even if subsequent events prove that the man you dismissed for dishonesty was in fact innocent, nevertheless, provided you followed a full and fair process, your decision will stand. You will be judged by any court to have acted as best you could in the circumstances and the person, though innocent, will have been fairly dismissed.
Faced with a disciplinary incident, the first thing you must do is carry out an investigation. If you are to conduct any resulting disciplinary hearing, then ideally the investigation should be carried out by another person. This may be a colleague or, if appropriate, a technical expert such as an accountant, engineer or safety expert. In a small organisation this may not be practicable, so you may have to carry out both functions yourself, in which case do your best to be objective and not rush to judgment until you have completed the investigation. The result of the investigation should be committed to paper. If you have interviewed witnesses, attach their statements to the report, having first read back your notes to them to ensure accuracy. The result may suggest that there is no case to answer, or that the matter requires not discipline but training or a change to operating procedures. However, if there is a case for the employee to answer, arrange a disciplinary interview. Give the employee details of the charge together with a copy of the evidence and allow sufficient time, ideally a few days, to enable him or her to prepare a defence. Make clear the right to be accompanied at this interview.
At the interview make quite sure that the employee is fully aware of the problem and then run through the evidence to ensure that he or she understands it. Having done that, ask the employee to respond, during which time you should listen carefully, make notes, and interrupt only to manage the meeting or to seek clarification. When the employee has finished, complete your notes and read them back to the employee so that there can be no doubt but that you have an accurate record of the response. Then call an adjournment.
For a while do something else that will take your mind off the issue so that, when you do turn to it again, you do so with a reasonably clear mind. Then read the evidence against the employee and the evidence in his or her support, which will be largely the response to the complaint. You should now ask the following questions:
- Have I carried out a thorough investigation?
- Have I carried out a proper disciplinary interview?
- Have I weighed the evidence objectively?
If the answer to all three questions is “Yes”, then ask yourself:
- What do I believe?
- On what basis do I believe that?
If you believe that the employee is innocent, then the problem is solved. If on the other hand you believe that the complaint against the employee is justified, then you may safely apply an appropriate sanction. You will have done all that the law expects you to do and therefore will have made a reasonable decision. As indicated earlier, even if you dismiss the employee but he or she subsequently is found to have been innocent, nevertheless your decision will stand and you will not be criticised in law. You may choose to offer some form of restitution but will be under no obligation to do so. Remember – even in the criminal court a verdict has to be based on there being no reasonable doubt, and even so, judges and juries sometimes get it wrong. They, like you, are only human and can only do their best to be fair.