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Misconduct and serious misconduct

“Misconduct” means some form of wrongdoing. Usually it will involve deliberate wrongdoing, but there may be circumstances where an employee acts so carelessly that it amounts to serious misconduct (i.e. gross negligence or recklessness).

“Serious misconduct” involves serious wrongdoing. Where, after a fair process, it is established that an employee’s actions amount to serious misconduct, an employer may terminate the employee’s employment without notice (sometimes referred to as “instant” or “summary” dismissal). The misconduct must be sufficiently serious that it undermines the trust and confidence that the employer has in the employee (e.g. theft, sexual or other assault, or the use of illegal drugs at work).

Sometimes employment agreements list conduct that the agreement says amounts to “serious misconduct”. If an employee engages in misconduct that is listed, that doesn’t necessarily mean that serious misconduct has automatically occurred. In every case the employer must consider all the facts and the employee’s response before it decides whether serious misconduct has occurred. When this is done, what looked like serious misconduct may not be so serious after all.

Also note that minor misconduct cannot become serious misconduct just because it is on the serious misconduct list.

Process

The purpose of any disciplinary action is to prevent reoccurrence of the inappropriate behaviour/misconduct. The emphasis should be on the corrective action required to change the employee’s conduct and giving the employee a reasonable opportunity to do so, not on punishing the employee.

An employer should generally take the following steps when considering disciplinary action for possible misconduct or serious misconduct.  The employee should also know their rights and obligations in this process.

Both sides are required throughout the process to cooperate with each other, to answer questions honestly and openly, and to act in a respectful and sensible way. The employee has the right to have a representative present to speak on his or her behalf.  

Proof

A disciplinary investigation is not a criminal prosecution – the employer does not need to prove that misconduct occurred ‘beyond all reasonable doubt’. However, to discipline an employee for misconduct, the employer needs to be convinced that the misconduct occurred, and there needs to be reasonable grounds to support that. The more serious the misconduct (e.g. theft, sexual assault), or the more serious the possible consequences are for the employee (e.g. final warning, dismissal), the stronger the employer’s supporting information and reasoning needs to be before action is taken.

Suspension

In particularly serious cases, an employer might be entitled to suspend an employee during the disciplinary process. Generally, there is no right to suspend unless the employment agreement provides for suspension. However, employers can sometimes suspend employees when investigating very serious cases if there is good reason (e.g. alleged theft resulting in a need to ensure the accounts are not interfered with during the investigation; or alleged sexual assault resulting in the need to protect the employee who may have been sexually assaulted).

The employer must also follow a fair process before deciding to suspend the employee. The employee should be given an opportunity to comment on the proposed suspension, and the reasons why the employer thinks suspension is appropriate. Again, the employer must consider the employee’s comments with an open mind.

Warnings

In circumstances where the misconduct is not serious, or where the employer otherwise decides not to dismiss, the employer may decide to give the employee a warning.

The employment agreement may stipulate whether written or verbal warnings are required. The type of warning required may be different at different stages of the process. The warning must include information making it clear what the misconduct is and the consequences of further misconduct. A final warning should be in writing, unless there is a different process in the employment agreement.

If an employee has had warnings previously, the employer might be able to dismiss the employee or might give a further or final warning. However, a previous warning or warnings do not always justify dismissal or a final warning – generally speaking, a warning for one type of conduct cannot be relied upon when dealing with another type of misconduct and, if a warning is too old, it may be unfair for an employer to rely on it.