The most common mistake employers make

Employment lawyers are kept busy by employers who fail to follow this basic rule:

Before taking disciplinary action against a worker, the employer must give the worker an opportunity to explain


Disciplinary action usually means a warning or dismissal. The right to be heard is sometimes called the right to "natural justice".

Some (real) examples to consider:

1. The employer sees the worker take money from the till and put it in his pocket.

2.  The worker's stupidity and failure to follow instructions has led to damage that will likely cause the employer to lose its major client.

3.  The worker is 'uncontrollable' and has just given her manager the fingers.

The employers in each of the above examples dismissed the workers on the spot. Had any of these cases gone to a hearing (instead of settling at mediation), each employer is very likely to have lost because they didn't give the worker an opportunity to explain.

Unexpected explanations might include:

1.  My mother died last night. I'm in a hell of a state and shouldn't have come to work today.

2. I had a car accident in the weekend (here's the hospital admission form) and haven't been able to hear or concentrate since.

3. My new medication is making me do really weird things.

Just in case there is a plausible explanation, the employer must  give the employee an opportunity to present it. The employer may still decide to dismiss but at least the employer can show they have acted calmly and have taken the explanation into account.

There are other procedural requirements, but none as important as this.


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