Allegations of misconduct in the workplace can have a serious impact on both employees and employers. As an employer, it can be hard to identify the most appropriate course of action. In some situations, you may wish to terminate employment immediately. However, this might not always be suitable or lawful. This article will explain which rights employees and employers have concerning workplace allegations.

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. 

However an allegation arises, the type of allegation can affect your rights and obligations as an employer. 

Serious misconduct is a term used to describe serious offences. For example, these offences include:

  • theft;
  • violence;
  • sexual assault;
  • fraud; and
  • causing serious risk to the health and safety of others during the course of employment.

You have different rights in respect of serious misconduct than other types of employee behaviour.

What Rights Do You Have as an Employer?

Summary dismissal allows an employer 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. You should make sure not to rely on allegations that other employees or customers make if you did not witness the misconduct yourself. In this situation, you must investigate the situation before you can terminate the employee’s employment legally.

You should speak seperately with the:

  • individual making the allegation; and
  • employee who is alleged to have committed the misconduct. 

Providing an opportunity for both parties to explain the situation will help you to make an informed decision about whether or not to terminate the relevant employee’s employment. You should keep a detailed record of any meetings you hold with the employee and the individual alleging the misconduct.

If it is unclear from this discussion whether or not the employee’s conduct equates to serious misconduct, you should consider whether:

  • it was an isolated incident;
  • the employee was able to provide a reasonable explanation for their conduct; and
  • the employee has previously received any training or workplace policies in respect of their conduct.

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 warning stating that any future incidents will result in dismissal. Details of this warning should be provided in a formal letter to the employee. If the employee’s conduct continues and you decide to terminate their employment, ensuring that a clear investigative process occurred and the employee received clear warnings will help to protect you in the event of an unfair dismissal claim.

Rights 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 investigating those complaints. Firing an employee without substantial evidence that the accusations are true could result in the employee filing an unfair dismissal claim. Another reason to investigate thoroughly is to ensure that the claims are true. There are often cases where an employee falsely accuses a colleague of unfair treatment and this later comes to light during investigations or in court.

For example, in a recent case, a female 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 claims 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. These allegations came about after the employee’s 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
  • gets to the bottom of the claims early. 

Key Takeaways

When workplace allegations arise, you should ensure that 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 unsure of the appropriate steps to take to protect your business when workplace allegations arise, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Bianca Reynolds
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at

View Privacy Policy