As an employer, it is essential you understand how to handle the challenge of workplace misconduct. If you are not sure how, this Legal Kitz blog will point you in the right direction!
What is workplace misconduct?
Workplace misconduct refers to any type of behaviour that falls outside of an organisation’s standards and policies. This can include acts such as harassment, discrimination, theft, fraud, insubordination, excessive absenteeism, substance abuse, and more. The consequences of workplace misconduct can be severe and can negatively impact both the individual employee and the organisation as a whole. For employers, it can create a hostile work environment, lower morale and productivity, increase turnover, and result in legal liabilities and financial penalties.
Serious Misconduct
Minor and serious misconduct are terms used to describe behaviour that falls outside of an organisation’s standards and expectations. The difference between misconduct and serious misconduct lies in the severity of the infraction and the impact it has on the organisation and its employees.
According to the Fair Work Commission in Australia, misconduct refers to behaviour that is inappropriate or in breach of an organization’s policies and rules, but is not considered to be serious.
Examples of minor misconduct in the workplace can include:
- Constant and repeated tardiness
- Failing to meet deadlines
- Using company equipment for personal use
- Damage to company equipment
- Absences without leave
- Incorrect uniform/dress standards
- Leaking of company information
- Poor performance
Serious misconduct, on the other hand, is considered to be a severe breach of an organization’s policies and can have a significant impact on the organization and its employees. Serious misconduct can result in immediate termination of employment without notice or compensation.
Examples of serious misconduct in the workplace can include:
- Theft
- Fraud
- Harassment
- Discrimination
- Insubordination
- Assault
- Substance abuse
- Damage to property
- Causing injuries due to negligence
It is important for organisations to have clear policies and procedures in place to distinguish between misconduct and serious misconduct. This helps to ensure that employees are aware of the behaviour that is expected of them and provides a clear framework for disciplinary action in the event of a breach. Additionally, it helps to ensure that appropriate action is taken in cases of serious misconduct, while minor infractions are dealt with in a less severe manner.
Reporting suspected misconduct in the workplace
Reporting suspected misconduct in the workplace is an important process for maintaining a positive and ethical work environment. According to the Australian Public Service Commission (APSC), employees have a responsibility to report suspected misconduct that they become aware of in the course of their work. This can include behaviour that is inappropriate, unethical, or in breach of an organisation’s policies and rules.
When reporting suspected misconduct, employees should provide as much information as possible, including the nature of the misconduct, the date and time it occurred, and the names of any witnesses. The APSC advises that employees should report suspected misconduct to their supervisor or manager, or to the relevant internal reporting mechanism, such as the human resources department.
Employees who report suspected misconduct in good faith are protected from retaliation by their employer. The APSC also states that all reports of suspected misconduct will be treated confidentially and investigated promptly and fairly.
Workplace misconduct investigations
Investigating workplace misconduct is a crucial step in addressing inappropriate behaviour in the workplace. This process helps organizations to identify the root cause of the misconduct, determine the appropriate disciplinary actions, and prevent similar incidents from happening in the future.
The following steps outline a general process for investigating workplace misconduct:
- Gathering information: The first step in investigating misconduct is to gather information about the incident. This includes talking to witnesses, reviewing any relevant documents or emails, and obtaining a statement from the person accused of misconduct.
- Interviewing the accused: It is important to interview the person accused of misconduct to hear their side of the story. This provides an opportunity to ask questions and gather information that may not have been covered in the initial investigation.
- Evaluating the evidence: Once all of the information has been gathered, it is time to evaluate the evidence. This includes considering the credibility of witnesses, the reliability of documents, and the consistency of the information obtained.
- Making a determination: Based on the evidence gathered, a determination must be made as to whether the misconduct did in fact occur. If the misconduct is found to have taken place, the next step is to determine the appropriate disciplinary action.
- Taking disciplinary action: Depending on the severity of the misconduct, the disciplinary action may range from a warning to termination of employment. The disciplinary action must be consistent with the organization’s policies and procedures and must be supported by the evidence gathered during the investigation.
- Documenting the investigation: It is important to document the investigation, including the steps taken, the evidence gathered, and the determination made. This documentation will be useful in the event of any future legal proceedings or appeals.
Investigating workplace misconduct is a complex process that requires careful consideration and attention to detail. By following a systematic approach and gathering evidence to address the misconduct in a timely and appropriate manner, organisations can ensure that the investigation is thorough, fair, and in compliance with applicable laws and regulations. whilst promoting a positive work and ethical environment.
Being investigated at work: knowing your rights
When an individual is being investigated for misconduct at work, it is important for them to be aware of their rights in the process. The following are some of the rights that a person has during a workplace misconduct investigation:
- Right to a fair investigation: The individual has the right to a fair and impartial investigation that is conducted in accordance with the company’s policies and procedures. The investigation should be based on evidence, not assumptions or rumours.
- Right to representation: The individual has the right to be accompanied by a representative or union official during any meetings related to the investigation. This can provide them with support and ensure that their rights are protected.
- Right to privacy: The individual has the right to privacy during the investigation. Information gathered during the investigation should be kept confidential, and only shared with those who have a need to know.
- Right to due process: The individual has the right to due process, including the right to be informed of the allegations against them, the right to respond to those allegations, and the right to be heard.
- Right to appeal: If the individual disagrees with the outcome of the investigation, they have the right to appeal the decision through the company’s established grievance procedure.
Outcome of misconduct investigations
The outcome of an investigation can have a significant impact on both the individual who was the subject of the investigation and the organisation as a whole. The following are some of the potential outcomes of a workplace misconduct investigation:
- Clearance: If the investigation finds that there was no misconduct, the individual will be cleared of any wrongdoing. This can restore their reputation and help to rebuild trust in the workplace.
- Discipline: If the investigation finds that misconduct occurred, the individual may face disciplinary action, such as a written warning, suspension, or termination of employment. The disciplinary action should be consistent with the organization’s policies and procedures and supported by the evidence gathered during the investigation.
- Restitution: If the misconduct resulted in financial losses or damage to the organisation, the individual may be required to make restitution. This may include reimbursing the organization for any costs incurred as a result of the misconduct.
- Training: In some cases, the outcome of the investigation may include a requirement for the individual to participate in training. This may be to address the specific misconduct or to help prevent future incidents of misconduct.
- Policy changes: If the investigation reveals systemic issues or flaws in the organisation’s policies and procedures, changes may be made to address these issues and prevent future incidents of misconduct.
- Termination: Occurs after an investigation has found the employee guilty of misconduct and the employer has decided to end the employment relationship as a result. The consequences of workplace misconduct can range from a verbal warning to termination, depending on the severity of the misconduct and company policies.
Consequences of misconduct
The aftermath of misconduct can have serious consequences for both the individual and the organisation as a whole, including:
- Damaged reputation: For both the individual and the organisation, impacting the individual’s future employment prospects and the organisation’s ability to attract and retain employees and clients.
- Legal implications: In some cases, particularly if it is a serious misconduct involving harassment, discrimination, or retaliation, the individual may face legal action by the victim.
- Decreased morale and productivity: It can have a negative impact on the morale and productivity of other employees, leading to increased turnover, decreased engagement, and a negative work environment.
- Financial consequences: This may include legal fees, compensation for the victim, and the cost of replacing the individual who committed the misconduct.
Legal advice
The Australia Public Service Commission (APSC) has extensive resources available for identifying and dealing with misconduct in the workplace. If you require legal advice regarding misconduct, or have any questions about our products or services, Legal Kitz can assist you. To arrange a FREE consultation with one of our highly experienced solicitors, click here today, or contact us at [email protected] or 1300 988 954.