A recent court finding that an "informal" discussion constituted disciplinary action is a "classic" example of how failing to communicate the purpose - and possible consequences - of management action can put employers at risk, says Thomson Playford Cutlers partner Jacquie Seemann.

The case also demonstrates the danger of departing from "published policy", she says. "In the end, what the law is interested in is the substance. Did the employer tell the employee that there were things wrong with her performance or her conduct, and did the employee understand (or should the employee reasonably have understood) from that conversation that her job was at risk?

"And that's what it boils down to," she says. "It doesn't matter what you've got written down as a policy, it doesn't matter what you call the meeting, it doesn't matter how many people you have in the meeting... or how ‘casual' it is on the surface, it comes down to those very specific issues."

Preliminary steps still constitute disciplinary action

In 2009 a respite care provider received two complaints about a support worker who allegedly made inappropriate comments about clients.

Rather than take the first step of its formal disciplinary process, the company's development and wellness officers decided to hold an informal meeting with the worker to determine whether formal disciplinary action was necessary.

The worker's upcoming shift was cancelled and she was instead asked to meet the officers at a local Starbucks. She was told that the purpose of the meeting was to check the facts about some "issues that had come in".

The meeting began with coffee, cakes and informal conversation. The "issues" were then raised and discussed with the worker while one of the officers took notes.
The notes were later passed on to the company's manager, who emailed the worker saying there was no need for a further, formal meeting "at this stage" - but asking her to be mindful of not only what she said but, more importantly, how she said it.

In the days that followed, the worker worried that further shifts would be cancelled and other issues would be raised. After seeing her doctor and obtaining a medical certificate, she lodged a claim for worker's compensation. It was rejected by the insurers but accepted by Q-COMP after review. In February this year, the employer appealed unsuccessfully to the Queensland IRC.

Good intentions, poor communication

Before Commissioner Glenys Fisher, the employer accepted the worker had suffered a psychological injury, but argued that she was mistaken in thinking that the "informal" meeting and follow-up email were a form of disciplinary action.

The employer argued that the preliminary "research meeting" had been introduced because of concerns that the first step of its formal procedure - written notice of an upcoming disciplinary interview from the manager - caused workers discomfort and stress.

Commissioner Fisher found the decision to raise and discuss concerns informally was "still a step, albeit a preliminary one, in the disciplinary process" and that the decision to cancel the worker's shift further indicated seriousness.

She said employees should have received information on:

• the purpose of a "research meeting";
• where it fitted in the context of the disciplinary policy;
• how meetings were to be conducted;
• whether, where and for how long any records of the meeting or its outcome were to be kept; and
• whether records could be used in future disciplinary matters.

The written record of the meeting also had "connotations of formality" and lent weight to the view "that the step of research meetings is part of the disciplinary process", she said.

Employers must communicate every step clearly: Lawyer

In allowing informal "research meetings" to take place, the employer effectively added a step to its existing policy without communicating the ramifications to employees affected by that step, says Seemann.

"So it's not that there's a problem with introducing an informal process as such. The problem is that they've got this prescriptive disciplinary policy in operation, and they've effectively changed it without telling anybody they've changed it.

"They haven't told [the worker] why they're meeting, they haven't told her that the meeting will decide whether or not there's going to be disciplinary action and then - even having said to themselves 'this is a research meeting, there's no disciplinary consequences' - the letter sent after the meeting is clearly a disciplinary letter," she says.

"It's all a matter of how you do it, it doesn't matter what you call it," Seemann says.