Handy hints for employees responding to disciplinary allegations
So you have been provided with disciplinary allegations and you need to give a response. A response can be given verbally in a meeting, in writing or by a combination. It is only in the simplest and least serious of situations that a purely verbal response should be provided. See our factsheets on disciplinary action and interview tips. You may walk out of a disciplinary meeting having given a verbal response and then remember something else to say. Even a verbal response can be supplemented in most situations with a written response.
Make sure you have enough time to properly consider and articulate a response.
It is common for responses to be expected within 24 hours of being presented with allegations. See our bulletin on notices to respond. You can ask for an extension of time and in most cases, an extension of a day or even several days will be granted. If you are not medically fit to respond, you can consider approaching a doctor for medical advice about the possibility of taking personal leave for a period. Alternatively, you can do the best you can in the time available and point out in your response that you have asked for an extension which was refused and you have not been able to provide a complete response in those circumstances.
Make sure you are clear what the allegations (whether of misconduct or poor performance) are that have been made against you.
These should ideally be in writing. If you are not clear on the allegations, you should ask the employer to clarify the allegations and provide further detail. Increasingly, employer allegations are poorly worded, vague and difficult to respond to. Do the allegations concern performance matters which haven’t been raised previously through a standard process of appraisal, counselling, warning or performance improvement. Or are they conduct related?
Allegations should state precisely what it is you have done wrong, the facts to support that allegation and also state with precision the particular standards, policies or other requirements that have been breached and whether the alleged conduct is serious misconduct, inappropriate conduct, poor performance, workplace bullying or harassment etc.
Knowing what the allegations actually are is key because you should respond ONLY to the allegations that have been made, not what you think the allegations are.
It is easy to get emotional, particularly in meetings, but you should limit your response to dealing with the facts of the allegations against you. You should respond as fully as you can to the facts comprising the allegations but no more. We cannot stress this enough. Vague, generalised responses full of opinions are of no use at all. If responding in writing, you should:
respond in the form of a letter addressed to the employer;
use full sentences and correct grammar. Avoid using abbreviations;
number each page and paragraph of your response for ease of reference;
set out your understanding of the allegations made against you at the beginning of the response;
use sub headings as necessary;
respond in a chronological way to alleged events;
don’t make blanket denials but where possible, set out your verbatim recollection of what was said in a particular meeting or incident, ie “I said…., she said….”;
remember the golden rules of responses – when did it happen, where did it happen, who was there, what was said or happened and provide background context (but don’t overdo it);
if you cannot remember precisely what was said, then state the substance of what was said or done;
where you may have done something or said the words that have been alleged, set out the full background to give the proper context to your actions or words. Often allegations are made of conduct in isolation when proper context is necessary;
as a general rule, limit your response to the allegations that have been made against you;
avoid making assertions or expressing general opinions;
humans have a habit of apologising for things they haven’t done. As a general rule, don’t make concessions. A well placed expression of remorse if you have engaged in the alleged conduct or a part of it may be useful, but don’t count on it;
avoid the temptation to lash out in response. Don’t express how affronted you are by the allegations or threaten defamation and don’t complain about others. This may be a matter for a separate complaint by you but should not form part of your response. It is of little assistance to make broad assertions or complain of conduct by others in the workplace;
identify relevant witnesses if there are any (and ask for permission to contact them to obtain statements);
make it clear the allegation is denied or denied in part (identifying which part);
avoid use of the terms “I don’t recall” (because someone else might), “I believe” (which is an opinion), “I think” (which means you are uncertain) or “I would never have done that” (which is not the same as you didn’t do it);
don’t refuse to respond – a qualified response under protest is preferable to an outright refusal;
remember to summarise the key points at the end of your response.
Don’t just put a brain dump on paper and expect people to read it.
The easier you can make it for a decision maker to understand your response, the better your prospects.
You may feel unable to express yourself properly in writing. Increasingly, respondents are using artificial intelligence to help. This is fine but at the end of the day it’s your response so make sure you are comfortable with what is generated by AI and that it properly expresses what you want to say. It is important that responses come from the heart and ideally are expressed in your own words. Decision makers will be able to see the use of AI and it may not help your cause.
Consider getting legal advice from a lawyer.
Yes, it costs money but it may help to put things in context and a draft response can benefit from a lawyer’s review. It may or may not make any difference but a well worded response may be useful for subsequent proceedings and may make the employer think they should offer a settlement rather than simply terminate.
Remember that the issue of whether you did it is different to what penalty follows.
The two may be treated together in allegations or separately. You may or may not get an opportunity to separately respond on penalty and you should ask for clarification if you are not clear on this. Whether you intended to do something is generally relevant to penalty but not the fact of whether the alleged conduct occurred.
Matters such as the seriousness and/or isolated nature of the issue, lack of past disciplinary history, no prospect of repeat conduct and willingness to undertake training are relevant to penalty. Your mortgage, debts and ability to find other employment are generally not relevant.
The unfortunate reality is that sometimes outcomes are prejudged when allegations are presented.
You should get legal advice early to decide on your strategy. Even if you don’t think it will make any difference, a well worded response may be useful for subsequent proceedings and may make the employer think they should offer a settlement as an option to termination.
Authored by Rob Stevenson, Principal of Australian Workplace Lawyers
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Rob Stevenson is the principal of Australian Workplace Lawyers. He has over 25 years experience in advising and assisting individuals, small and medium size businesses and not-for-profit and charitable organisations with their workplace legal issues.
He can assist clients in understanding their rights, obligations and entitlements under the law, preparing and/or reviewing agreements, and helping clients resolve their employment or contracting disputes and problems, informally or through the court/tribunal system.