Everyone
Misconduct
Misconduct is when an employee does something wrong through their actions or inaction, or their general behaviour. This may justify disciplinary action being taken by the employer.
What is misconduct?
Misconduct can be at 2 different levels: misconduct and serious misconduct.
Examples of misconduct include:
- using inappropriate language
- internet misuse
- spending too much time on social media during work hours
- not following reasonable and lawful instruction
- minor breaches of the
employment agreement , like dressing inappropriately at workEmployment agreements contain the terms and conditions of employment. Every employee must have a written employment agreement outlining the terms and conditions of employment. ‘Employment agreement’ has a broader meaning that includes all other documents and other agreements forming part of the contractual agreement between the employee and employer.
- repeated lateness.
Examples of serious misconduct include:
- violent behaviour
- bullying
- sexual, racial or other harassment
- theft or fraud
- behaviour that endangers the health and safety of yourself or others
- using illegal drugs at work
- dishonesty.
Employer’s response to misconduct
An employer’s response to misconduct must be appropriate and reasonable. Less severe misconduct may lead to a warning while more serious misconduct may lead to dismissal.
A single instance of non-serious misconduct usually would not, on its own, undermine the relationship of trust between an employee and employer, and therefore would not justify a dismissal unless it were repeated.
Employers must ensure a fair investigation and disciplinary process.
Identifying serious misconduct
Whether an employee’s behaviour is considered misconduct or serious misconduct will depend on the facts of each case, including the employee’s explanation of what happened.
Serious misconduct is when an employee’s behaviour has undermined or destroyed their employer’s trust in them and impacted the employee’s ability to do their job.
Serious misconduct usually involves the employee acting deliberately — however, there may be cases where an employee acts so carelessly that it amounts to serious misconduct.
The key consideration is whether the misconduct undermines the trust the employer has placed in the employee to perform their assigned duties. For example, if a security guard is guilty of violent misconduct, this might cast doubt on their ability to safely provide security.
Employment agreements and serious misconduct
Some employment agreements or workplace policies will list examples of serious misconduct. However, even if an employee behaves in a way that is identified in their agreement, it does not necessarily mean that serious misconduct has occurred.
Similarly, an employee may be dismissed for serious misconduct even when their employment agreement, or other policies, have not identified the behaviour as serious misconduct.
Some organisations may be sensitive to public opinion, and their business interests more likely to be impacted by employee misconduct. It is important to make sure that employees know the standards that are expected of them. Public servants and more senior employees, for example, may be held to a higher standard.
Employers should consider putting a clause in their employment agreements to make it clear that employees may be dismissed if their conduct outside work brings the employer into disrepute, or for other specified reasons.
Repeated misconduct
Every instance of misconduct, whether or not it’s the same behaviour, requires a fair investigation and disciplinary process.
It is common for warnings to be issued for misconduct. In serious cases, a final warning may be issued stating that the employee will be dismissed if the same behaviour happens again.
There is no set number of warnings that need to be issued before an employee can be dismissed. As always, the employer’s response to misconduct must be fair and reasonable.
Summary dismissal
‘Summary dismissal’ is when an employee is dismissed without notice. This means they are not given the opportunity to work out their notice period and are not paid out for the notice period.
An employee may be summarily dismissed if, after a fair investigation and disciplinary process, they are found guilty of serious misconduct.
It is not necessary to have a specific clause in the employment agreement for summary dismissal to be an option in the event of serious misconduct. However, having a clause makes the decision more reasonable, provided the employer has followed the proper process.
Malicious complaints
If a complaint of misconduct made by another employee is found to be untrue, the employer can investigate whether the complaint was brought maliciously. This would generally only happen if the investigation had found that the person who made the complaint had knowingly lied.
If an employee is accused of misconduct
If an employer thinks an employee may be guilty of misconduct, they must raise the issue with the employee first, and not make any decisions before the employee has had a fair opportunity to tell their side of the story.
If it's a minor issue, this could be an informal conversation to let them know that if it happens again, they will begin a formal process. If it's more serious, the employer may need to inform the employee that there will be an investigation, and that they will meet with them after this has been done.
Either way they should let them know what's happening in writing.
Once an investigation has been completed, an employer must decide what steps to take to resolve the issue. No matter what they decide, their response to the situation must be fair and reasonable in all circumstances.
- Lesser misconduct may lead to a warning. It would not result in dismissal unless it’s something that happens repeatedly.
- Serious misconduct may lead to dismissal.
Employee behaviour away from work
In some circumstances, an employee’s behaviour outside of work, including on social media, can lead to disciplinary action or dismissal for misconduct.
When an employer can take action
An employer can take action in response to an employee’s conduct outside of work when it has a negative impact on the employee’s job or the business — for example, if the conduct has:
- affected their ability to continue in the job
- harmed either their own or their employer’s reputation
- undermined the employer’s trust in them
- had an impact on other employees.
Situations where this might happen can include where the employee:
- has been charged with a civil or criminal offence
- is harassing another employee outside of the workplace
- is acting badly towards a customer outside of the workplace while identifiable as an employee of the employer.
Employers must carry out a fair investigation and disciplinary process before deciding whether the behaviour amounts to misconduct or serious misconduct.
Bringing the employer into disrepute
Employers may consider dismissal for serious misconduct when an employee’s conduct might reasonably be viewed as having a negative impact on the reputation of the employer’s business.
The employer only needs to prove the potential for damage to the business rather than actual damage — for example, the possibility of the employer being mentioned if the conduct is referred to in the media.
John, 18, works for a supermarket. After work one evening, he and some of his workmates pop into the pub across the road for a drink. They get into an argument with another patron, which ends up in a fight between John and the other patron.
The patron is a truck driver for the food distribution company that supplies the supermarket John works for, and he easily identifies John and his colleagues as supermarket employees because they are wearing their supermarket uniforms.
He complains to the supermarket and, after an investigation, John is instantly dismissed for bringing the supermarket into disrepute, and his colleagues are reprimanded for their part in the incident.
John raises a personal grievance with his employer, claiming he was dismissed unfairly. He argues that what he did in his personal time was his business, not his employer’s.
The matter eventually goes to the Employment Court, which finds that John’s actions had an adverse impact on his employer’s reputation and business because he was identified as an employee of the supermarket, and that his behaviour seriously breached the trust and confidence in the employment relationship.
The Court confirms John’s dismissal.
Social media activity
Activity on social media may be a cause for disciplinary action, including dismissal if it is serious or repeated.
Employers should have social media policies clearly setting out what is considered unacceptable behaviour, for example:
- posts that are critical of the employer, manager or colleagues
- activity on social media that otherwise affects relationships in the workplace, for example, bullying or harassing other employees.
- activity on social media sites that is inconsistent with the values of the company
- divulging commercially sensitive information
- posts that show that an employee was not doing what they said they were doing, for example, if the employee said they were sick and they were seen doing a recreational activity.