Workplace misconduct allegations can have a significant impact on both you, as an employer, and your employees. When a workplace allegation has been made, it can be challenging to determine the most suitable course of action. While you may want to terminate the employee immediately in some situations, this may not always be appropriate or legal. This article will clarify the rights of both employers and employees concerning allegations of misconduct in the workplace.
Types of Allegations
Allegations can arise in any number of circumstances.
For example:
- colleagues of an employee may inform you of specific conduct they have witnessed;
- a manager may speak with human resources about an employee’s behaviour; or
- the employee may raise issues directly with their own manager.
Regardless of how an allegation arises, the type of allegation can affect your rights and obligations as an employer.
You have different rights in respect of serious misconduct than other types of employee behaviour. Serious misconduct is a term used to describe serious offences. For example, these offences include:
- theft;
- violence;
- sexual assault;
- fraud;
- causing serious risk to the health and safety of others during the course of employment; and
- the refusal to carry out lawful and reasonable instructions consistent with the employment contract.
What Rights Do You Have as an Employer?
Your rights will mostly depend on the type of allegation that has been made. It is important to avoid relying on allegations made by other employees or customers if you did not personally witness the misconduct. To legally terminate an employee’s employment in such a situation, you must conduct a formal workplace investigation. This investigation will help you gather evidence and make an informed decision based on facts rather than hearsay.
Firstly, you should speak separately with the:
- individual making the allegation; and
- employee who is alleged to have committed misconduct.
It is recommended that you offer a chance for both parties involved in a misconduct situation to express their perspectives. This will assist you in making a well-informed decision regarding the termination of the employee in question. It is important to maintain a detailed record of all meetings held with the employee and the person who reported the misconduct.
In the Case of Serious Misconduct
Summary dismissal allows you to terminate an employee on the spot if they have engaged in serious misconduct. This is a very serious undertaking, as you can face a claim of unfair dismissal if the conduct does not amount to serious misconduct.
To decide whether an employee’s behaviour amounts to serious misconduct, you should take into account a series of factors, including whether:
- it was a one-time occurrence or a repeated pattern of behaviour;
- the employee was able to provide a reasonable explanation for their conduct; and
- the employee has received any prior training or been made aware of workplace policies regarding prohibited behaviour.
If the employee has not received a warning about their conduct previously, and the conduct does not amount to serious misconduct, you should provide the employee with a clear written warning stating that any future incidents will result in dismissal.
Details of this warning should be:
- provided in a formal letter to the employee; and
- preferably acknowledged and signed off by the employee.
If the employee’s conduct continues and you decide to terminate their employment, you should ensure that a clear investigative process occurred and that the employee received clear warnings. This will help protect you in the event that the dismissed employee brings a claim of unfair dismissal against you.
Continue reading this article below the formRights of the Employee
As an employer, you cannot legally fire an employee in Australia where allegations of bullying, harassment or misconduct have been raised without first undertaking a formal investigation of those complaints. Dismissing an employee without substantial evidence to support the accusations can result in an unfair dismissal claim being filed against you.
Additionally, conducting a comprehensive workplace investigation can help ensure that the allegations are true. There are often cases where an employee falsely accuses a colleague of harassment, and this later comes to light during formal investigations or in court.
Examples
For example, in 2012, an employee alleged that two senior officers of the Commonwealth Bank had sexually harassed her during her employment at the bank. During the proceedings, however, the court found that many of her allegations of sexual harassment were unsubstantiated or simply untrue. Ultimately, the court ordered her to pay over $5 million in legal costs.
In another case, an employee of the Department of Sustainability, Environment, Water Population and Communities alleged that his manager had engaged in bullying and threatening behaviour. He made these allegations after a performance review, during which his employer told him that he “needed development”. After investigating the allegations, the Department found that this employee, along with other colleagues, had made these accusations to try and get the manager fired. The employer subsequently terminated the employee.
These cases show the importance of having an investigative process in place that:
- respects the rights of the employee; and
- discovers evidence that substantiates the claims.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
In the event of a workplace allegation, you, as an employer, have several rights concerning dismissing employees. However, you must ensure that you are also respecting the rights of your employees and only dismissing them when necessary. You have thorough investigative processes in place to handle any claims of misconduct or harassment. This will prevent any issues that may arise from failing to:
- take appropriate action; or
- use effective resources to get to the truth of the matter.
If you are looking for advice concerning workplace allegations, 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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