Misconduct In The Workplace

Uncover insights on differentiating and addressing misconduct in the workplace, ensuring legal compliance and maintaining a healthy work environment.

What is misconduct?

Misconduct in the workplace refers to improper or unacceptable behaviour by an employee. This can range from general misconduct, like unauthorised absences or bad language, which breaches company policies or employee duties, to serious misconduct. Serious misconduct is defined as wilful behaviour that drastically contradicts an employment contract or poses a significant risk to a company's reputation, safety, or profitability.

Types of misconduct

Misconduct in the workplace can be broadly classified into two categories:

  1. General misconduct is a type of misconduct refers to behaviour that fails to align with employee obligations, duties, or company policies and procedures. Examples of general misconduct include unauthorized absences, chronic lateness, and the use of inappropriate language at work. These actions, while problematic, typically do not warrant severe disciplinary actions like immediate dismissal.
  2. Serious or gross misconduct is defined under the Fair Work Act 2009 and Fair Work Regulations 2009, serious misconduct encompasses wilful and deliberate behaviour that starkly contradicts the terms of an employment contract or poses a serious and immediate risk to the reputation, viability, profitability of the business, or someone's health and safety. Examples include theft, fraud, assault, intoxication at work, or failure to follow lawful and reasonable instructions. Serious misconduct can lead to summary dismissal, where the employee is terminated immediately without notice or pay in lieu of notice, following a substantiated offense and a fair disciplinary process.

It's important for employers to respond consistently to acts of serious misconduct, ensuring fairness and adherence to legal standards in the disciplinary process.

To effectively manage misconduct in the workplace, it is recommended to include policies on behaviour standards, misconduct, and disciplinary actions in your employee handbook. Your handbook, given to employees at the start of their employment, outlines the company's policies, culture, and performance expectations. The disciplinary action policy should provide examples and detail the disciplinary procedure, including potential consequences. Employment agreements should also clarify that misconduct could lead to termination.

Out of hours conduct

Out of hours conduct, referring to an employee's behaviour outside of work hours, is generally outside the direct control of an employer. However, there are circumstances where an employer may need to address such behaviour, especially if it impacts the employment relationship or the company's interests.

Employers can set standards for out-of-hours behaviour in the following contexts:

  1. Work duties outside of work hours which includes expectations for conduct during work-related functions or when performing work duties outside standard hours.
  2. Representation of the company where policies may restrict employees from wearing company-branded clothing out of work or engaging in actions that could disparage the company, such as posting negative comments about the business on public online platforms.

The employment contract and employee handbook should clearly outline these standards and the consequences of violating them. This includes detailing the disciplinary procedures that may follow and the potential impact on the employee's job.

For an employer to take action on out-of-hours conduct, there must be a significant connection to the employment relationship. The conduct should have the potential to seriously harm the relationship between the employee and employer or damage the employer's interests. Moreover, the employer must provide concrete evidence of how the conduct adversely affects the company. This approach ensures fairness and legality in addressing out-of-hours conduct that may impact the workplace.

Managing employee performance

Effective management of employee performance is crucial to minimise misconduct and align employee behaviour with company standards and values. Key strategies include:

  • Conducting regular performance appraisals and reviews.
  • Providing relevant training and coaching.
  • Creating a safe environment for employees to give honest feedback.
  • Clearly communicating expectations regarding conduct, performance standards, and company goals, both verbally and in writing.
  • Utilising employee feedback to refine company policies and agreements.
  • Ensuring management consistently follows and enforces company policies.

Consistency and adaptability in these approaches are essential for achieving optimal results in employee performance management.

Disciplinary action

When faced with serious misconduct by an employee, disciplinary action may be necessary, potentially leading to dismissal without notice or pay in lieu of notice. Here's a step-by-step guide to conducting a fair and effective disciplinary process:

  1. Investigate the allegations. Conduct a thorough investigation to establish the facts. If the misconduct is serious or poses a threat, consider suspending the employee on full pay during the investigation.
  2. Notify the employee in writing. Write to the employee detailing the allegations, the potential consequences if misconduct is proven, and the date and time of the disciplinary meeting. Inform them of their right to bring a support person to the meeting.
  3. Provide adequate notice for the meeting. Ensure the employee has a reasonable opportunity to prepare. Typically, a notice of 24-48 hours is standard.
  4. Conduct the disciplinary meeting. Allow the employee to present any extenuating circumstances. After the meeting, take time to consider their responses or conduct further investigations before making a decision.
  5. Decide on an appropriate outcome. Based on the findings, determine the most suitable response. This could range from a warning or reprimand to a final written warning, verbal warning, or in severe cases, termination.

Employment Compass is available to provide guidance on handling general and serious misconduct. For free initial advice, call our Employer Helpline at 1300 144 002.

Frequently asked questions

What Is The Definition Of Misconduct At Work?

Misconduct at work is deliberate behaviour that goes against business policies or procedures.

What Is Considered Misconduct In The Workplace?

Common examples include misuse of computers, frequent lateness, unexplained absences, failing to meet performance standards, poor presentation, personal calls on company time, and inappropriate behaviour impacting work or colleagues.

What Is Considered Serious Misconduct In The Workplace?

Serious misconduct involves behavior that threatens ongoing employment or the business, often including illegal activities or safety breaches.

What Are Examples Of Serious (Or Gross) Misconduct?

Examples include deliberate damage to property, fraud, theft, safety breaches, intoxication, violence, bullying, harassment, or not following lawful instructions.

How Do You Identify Serious Misconduct?

Serious Misconduct must align with the definition in the Fair Work Regulations. For complex cases, seek professional advice.

Can An Employee Be Fired For Misconduct Outside Of Work?

Action can be taken if there's a relevant connection to the business.

What Are The Types Of Disciplinary Action Outcomes?

Possible outcomes include written warning, letter of concern, reprimand, no action, final written warning, verbal warning, or termination, depending on the circumstances.

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