Imagine this scenario. You are called into a meeting on Friday afternoon and presented with a letter of allegations that says you are required to attend a meeting Monday morning to respond and that disciplinary action up to and including termination might occur. You try phoning around law firms and no one is available at short notice. What should you do? It depends. There is no strict requirement for an employer to give reasonable notice to respond to disciplinary allegations. You can see if the employer has a policy or an enterprise agreement which requires a certain time for notice of meetings but usually, policies are not that precise and enterprise agreements increasingly do not mention the issue. Public servants may have specified rights to notice.
If you feel able to fully answer the allegations in a meeting, then you should do so. Whilst not always necessary, it is generally wise to provide a written response to allegations as well as responding verbally in any meeting with the employer. But what if the allegations are lengthy or vague or complex? Well, you can ask the employer to agree to an extension of time. These requests should not be open ended or for weeks but most employers will agree to an extension of a day or 2. Asking for time to get legal advice is not a reason for an extension of itself. If the employer refuses your request, then you shouldn’t fail to provide a response or attend a meeting. You should do the best you can and write to the employer stating that you requested a response, you consider the refusal to be unreasonable, that you are providing the best response you can in the circumstances and again request further time to provide a more detailed response or refer to documents you need to see.
Also say that you may refer to the failure to provide a proper time for response in any subsequent legal proceedings. You should also feel free to provide a timely supplementary written response after a meeting if there are extra things you want to say; that is if you still have a job. If the allegations are vague, then you should respond as best you can and ask the employer to provide specific particulars of the facts of each incident alleged – where did it happen, when did it happen, who was there, what in fact happened or was said. If you are feeling unduly pressured by the process, then you may wish to seek medical advice and a postponement on medical grounds.
You should take a support person with you to any disciplinary meeting both to provide moral support and to act as an independent observer. Your support person should make notes of what is said at the meeting. You can also ask at the outset whether the employer proposes to record the meeting or take notes and whether you will be provided with a copy of the recording or notes. If not, you should ask whether the employer is agreeable to you recording the meeting. But you should not record the meeting if the employer does not agree. You should note the refusal and confirm that your support person is taking notes.
The provision of a reasonable opportunity to provide a response is one of the factors the Fair Work Commission can take into account when deciding if a dismissal has been harsh, unjust or unreasonable. A failure to provide procedural fairness may also be indirectly relevant to a breach of general protections claim or discrimination claim or if there is an avenue to challenge disciplinary action short of termination such as a warning. But disciplinary procedures do not have to be perfect and it is important not to become obsessed by the issue. There are many aspects to a procedurally and substantively fair disciplinary process and the time for response is only one. The reality is that there are very few ways to directly challenge a failure to give what you consider to be reasonable time for providing a response. If there is some evidence that the disciplinary action is a retaliation for an employee making a complaint or inquiry or another workplace rights reason, then it may be possible to lodge an application with the Fair Work Commission but this is not a simple process.
Of course, legal action may be able to be taken after the event depending on the outcome of the disciplinary process. And so it is generally wise for employers to provide reasonable notice to respond to disciplinary allegations and too much procedural fairness rather than too little. Minor issues (eg being 5 minutes late for work) may not require much notice but employers should give reasonable notice for any disciplinary allegation which may involve a warning or termination of employment. This may be several days.
Employees should refer to the factsheets on our website for guidance on responding to disciplinary allegations. Basic Rights Queensland also has an excellent factsheet on this topic – https://brq.org.au/wp-content/uploads/2024/04/Factsheet-Disciplinary-Meetings.pdf
Please contact us if you would like any further information or help.