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.
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.
- Before taking action - before commencing a disciplinary process, the employer should assess whether the particular concern or complaint is sufficiently robust and serious to require such a process. It may be necessary for the employer to undertake some preliminary steps to make this assessment (e.g. to read documents, or to speak briefly with someone who saw what happened or the employee who might be disciplined). If the employer needs to speak with an employee who could be disciplined later, then the employee needs to be told of this possibility and that what he/she says could be relevant in any disciplinary process.
- Forewarning and information - if the employer decides to commence a disciplinary process, the employer should provide the employee at the outset with all of the relevant information (e.g. documents), the reasons why the employer is concerned, and the possible consequences the employee is facing (e.g. a warning or dismissal). It could be procedurally unfair if, at the end of the disciplinary process, the employer decides to take a type of disciplinary action that the employee was not forewarned about.
- Preparing for a meeting - the employee should be invited to a meeting to provide a response. The employee should have enough time before the meeting to consider the information provided and to prepare his or her response and should be told that the response can be made orally or in writing, or in both ways. The employee should also be told who is coming to the meeting, and should be told of his or her right to bring a support person or representative with him/her.
- Listening and explaining - at the meeting, the employer should listen to the employee’s response with an open mind. If the employer disagrees with the employee’s response, the employer should say so, and should provide the reasons for that. This does not necessarily have to be done at the meeting, but the employee needs to know what it is that the employer is thinking, so that he or she has an opportunity to address that.
- Keeping a record - it may be helpful for both the employer and employee to keep a record of all discussions, agreements and meetings held.
- If further investigation is needed - once the employer has the employee’s response, it may be necessary to investigate further. The employee should be given an opportunity to comment on any new information that comes out of that further investigation. It may be necessary to meet again to do this.
- Decision - once the employer has all of the relevant information, the employer can decide whether the employee has committed misconduct or serious misconduct.
- Considering action to take - the employer should then consider what action it should take, if any. At this stage the employer should consider any matters that could be relevant to what action it takes (e.g. long-serving employee with a clean record), possible alternatives to disciplinary action, and any other appropriate assistance that might be provided to help prevent a recurrence (e.g. training or supervision). The action may be a warning (see below). If the employee has not had an opportunity to comment on the outcome (e.g. dismissal or disciplinary action) it might be necessary to have another meeting to hear and consider what he/she has to say.
- Preliminary decision - in serious or complex situations, the employer could provide the employee with a ‘preliminary decision’ (including details of any proposed disciplinary action), and to allow the employee to comment on it before a final decision is made. The employer must consider the employee’s comments with an open mind – that is, the employer must be prepared to listen to the employee and consider what they have to say before making a final decision.
- Final decision - once the employer has reached a final decision, the employer should tell the employee and provide reasons for the decision. This needs to be done in a respectful and sensible way.
- Giving notice - if the decision is to dismiss, and there is no serious misconduct, the employee should be given notice in accordance with his or her employment agreement. If the employee is to be dismissed for serious misconduct, the employer does not have to give notice but may choose to do so anyway.
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.
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.
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.
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.