Workplace misconduct is something that employers hope they do not have to address. However, it is essential to understand the practical and legal considerations in case workplace misconduct does arise. Nevertheless, there is no strict process on how to deal with misconduct in the workplace. In other words, it is generally dealt with on a case-by-case basis, and you need to consider many variables. Therefore, to help you manage workplace misconduct, this article will address:
- what misconduct is;
- legal considerations when managing misconduct;
- tips on how to manage workplace misconduct; and
- how to mitigate the chance of workplace misconduct.
What is Workplace Misconduct?
General misconduct is a behaviour or action that is unacceptable or improper in the workplace. The behaviour or action might be unacceptable or improper because it is:
- is contrary to company values; or
- does not align with the company’s expectations or duties it has set for the employee.
On the other hand, serious misconduct, also known as ‘gross misconduct’, includes willful or deliberate behaviour by an employee that causes a serious and imminent risk to the:
- health and safety of any person; or
- reputation, viability, or profitability of your business.
This behaviour is inconsistent with the continuation of employment. Examples of serious misconduct could be:
- theft or fraud;
- discrimination or harassment; and
- intellectual property and confidentiality breaches.
What Are the Legal Considerations For Workplace Misconduct?
When it comes to managing workplace misconduct, your legal obligations primarily concern giving your employee procedural fairness. Procedural fairness means that you must give an employee a fair and reasonable chance to respond to any misconduct allegations, including serious misconduct. This should be done before taking any disciplinary action, given the employee may have a valid reason for the misconduct, which may affect your decision.
Alternatively, your employee may consider bringing a general protections claim against you if you take adverse action against them because of a protected attribute of the employee. For example, say you terminate your employee’s employment because they arrive late to work, but they have previously explained that this is because they have carers’ responsibilities. In this instance, terminating employment could amount to adverse action.
Continue reading this article below the formTips for Managing Misconduct in the Workplace
You can take several steps as an employer to prevent and manage workplace misconduct.
1. Act Quickly and Investigate
You must act quickly and investigate the incident as soon as possible because the facts of the situation will be the most fresh in everyone’s mind. As a result, this:
- increases the likelihood of the facts being accurate; and
- mitigates the chance of anyone misremembering a situation that happened and potentially contaminating an employer’s investigation.
Additionally, if you leave the incident of misconduct unresolved, the higher the chance for something else to happen that may blur the lines between lawful and unlawful disciplinary action. Notably, the Fair Work Commission has previously found that employers have unfairly dismissed their employees when they let their employee continue their employment for some time after becoming aware of the misconduct.
2. Put the Allegations to the Worker
Once you have conducted your investigation, you can invite the employee to a disciplinary meeting. Before holding the disciplinary meeting, you should
- invite the employee to the meeting in writing;
- provide the employee with advance notice of the meeting, such as between 24 and 48 hours; and
- allow your employee to have a support person present during the disciplinary meeting.
In the meeting, you should:
- put the allegations to the worker; and
- explain the potential outcomes of the meeting and give them a chance to respond.
You should then consider your employee’s responses before you decide on the appropriate outcome of the disciplinary process. Additionally, you should confirm with your employees that you will notify them of the outcome once you have considered any matters they raised during the meeting.
3. Documentation
To best protect your company if an employee tried to bring an unfair dismissal or general protections claim against you, you should keep a paper trail of everything that has happened. Your paper trail can include things like:
- your investigations (internal or external) and how you undertook your investigation;
- evidence of your findings;
- your written records of inviting an employee to a disciplinary meeting;
- minutes from a disciplinary meeting (especially the employee’s response to the allegations);
- if this employee has been involved in any other misconduct or disciplinary issues;
- any informal disciplinary conversations you have had with the employee in the past, and when these conversations took place;
- what was involved in determining the outcome (including how you addressed the employee’s response to the allegations); and
- your written records of informing the employee of the outcome.
If your employee is not performing at the expected level, you may need to implement a performance improvement plan (PIP) to get them back on track. Our free PIP template will assist.
4. Make Your Decision
You must deal with workplace misconduct on a case-by-case basis. Even if this conduct has happened before, the individual facts of this situation should be considered. Therefore, when making your decision, you should consider:
- the employee’s response to the allegations;
- how the employee behaved in the disciplinary meeting; and
- whether this employee has been involved in previous misconduct or has anything else on their record.
5. Follow Your Workplace Policies
If you have one, following your Disciplinary Policy is essential. After all, you do not want to be in breach of your policies, as the employee can use this against you in potential future claims.
Additionally, remember to be consistent for employees with similar situations. For example, if you have let a misconduct issue slide for one employee but then terminated another employee for the same reason with the same facts, this could be problematic. Ultimately, you should be fair and consistent with all employees.
How to Mitigate Workplace Misconduct
Communication is one of the most important ways to ensure that your employees understand what you expect of them as an employee in your business. Furthermore, being clear on what you will not tolerate within the business is also helpful.
An effective way to communicate your expectations is by setting them out in a policy. In your policies, you can explain what does or does not constitute misconduct concerning concepts within your business. Three key policies that we recommend having in your workplace to assist with this are:
- an Information Technology (IT) Policy;
- a Work Health & Safety (WHS) Policy; and
- an Anti-Discrimination, Harassment & Bullying (ADHB) Policy.
Key Takeaways
It may not be possible to prevent all misconduct in the workplace. However, you can do your best to ensure that employees understand your expectations. As an employer, you may have to address workplace misconduct, so you must provide employees with procedural fairness throughout the entire process. If you would like to discuss workplace misconduct and how to manage it best, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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