Federated Farmers: Issues with staff during calving

Valid employee disciplinary action requires justification for the action and procedural fairness.

Difficulties with employees always seem to arise at the busiest times and, with spring calving under way, the Federated Farmers' legal helpline (0800 FARMING) has been busy informing farmers on how to manage or discipline problem employees.

With the start of the season in the not too distant past, and if the difficulties you face with your employee are significant, the first question to ask is, 'is the employee subject to a 90-day trial period?'.

A 90-day trial period will be validly in place if:
* The employment contract contains an appropriate 90-day trial period clause; and
* The employment contract is signed by the employee before they undertake any work (the employee can never have undertaken work for you in the past).

If you are unhappy with an employee's performance or behaviour, the fact that things are not going well should be discussed with the employee (informally) in the first instance. Ninety-day trial period dismissal should not typically come as a complete surprise.

If improvement does not follow, an employee may be dismissed under the 90-day trial period clause, on five days' notice. The Federated Farmers' employment contracts provide that an employer can pay out the employee in lieu of notice. Employers do not need to give a written reason for the dismissal but should give an explanation at the time notice of dismissal is given.

If the employee lives on farm and is subject to a service tenancy (included in Federated Farmers' contracts), it is a good idea to, at the same time as giving notice of dismissal, notify (in writing) that they have 14 days to vacate the accommodation.

An employee cannot bring a personal grievance in respect of a valid 90-day trial period dismissal, however they can still bring other types of grievances on grounds such as discrimination, harassment or unjustified disadvantage (so remember your good faith obligations).

If the 90-day trial period does not apply, employers can take disciplinary action in respect of employees who are behaving badly. Valid disciplinary action requires justification for the action and procedural fairness. The process set out in the below example should be followed whenever disciplinary action is pursued.

Employer (Fred) is becoming increasingly frustrated at employee (Dave) turning up late for work; yesterday he was two hours late for milking - which was extremely disruptive.
Fred understands that where a potential disciplinary matter is to be addressed, action must be taken as soon as practicable after the event.

1. Letter setting out allegations and facts relied on, potential serious and possible consequences, and calling to disciplinary meeting to discuss:

Fred writes a letter to Dave setting out that yesterday he was required to be at the shed at 6am, but did not turn up until 8am - two hours late without contact. Fred noted that this unauthorised absence from duty was potentially misconduct, and could result in a written warning. Fred asked Dave to meet in two days' time (48 hours' notice is required) to provide an explanation of his behaviour. He noted in the letter that Dave was welcome to bring along a support person with him to the meeting.

2. Meeting seeking explanation:

At the meeting, Fred reiterated that Dave's lateness was disruptive to the business, and asked Dave for an explanation. Dave explained that he forgot to set his alarm. Fred told Dave that he would consider his response, and come back to him with the disciplinary outcome (if any).

3. Decision letter:

Fred considered Dave's explanation overnight, and the next day wrote a letter to Dave indicating he did not regard Dave's explanation as sufficient.

The business required employees to be responsible and dependable, and to turn up to work on time. He noted that Dave turning up to work two hours late was unauthorised absence from duty, and that this was misconduct - and this letter was a written warning for that.

The most important requirement of a disciplinary process is that employers must not make a decision as to outcome before allowing employees an opportunity to explain their behaviour, and considering that explanation.

If the process set out above is not followed, employers may face a risk that any disciplinary outcomes may be unjustified, and may found a basis for a personal grievance.

Depending on the circumstances and the severity of the employee's actions, the penalties for misconduct/serious misconduct may include:
* A verbal warning
* A written warning
* A final written warning
* Dismissal on notice
* Dismissal without notice (for serious misconduct only)
* The legal helpline team at Federated Farmers can talk you through pursuing disciplinary action and correctly invoking 90-day trial period dismissal, as well as broader employment law and legal assistance. Call 0800 FARMING.