As an employer or manager of staff, one of your most important tasks is to encourage and maintain a productive, positive and healthy working environment. To successfully achieve this balance, you need to set clear expectations for the performance and behaviour of your workers. You also need to be able to identify behaviour that is in breach of your workplace standards and to respond swiftly to inappropriate behaviour and misconduct.

Your employees are required by their employment contract to behave appropriately in the course of their employment. This includes having an obligation to:

  • serve you faithfully;
  • maintain your confidence;
  • take reasonable care in working for you;
  • co-operate with you as far as it is reasonable to do so; and
  • obey your lawful instructions.

If the behaviour of one of your employees constitutes misconduct you may be tempted to simply dismiss them. (And sometimes dismissal is the most reasonable action to take when considering the best interests of your company and your workers.) But it’s important you understand how to avoid any legal repercussions should you choose to go down this path.

To reduce your potential legal exposure in relation to employee misconduct, ensure you have policies and guidelines in place that outline how you expect employees to behave and the disciplinary steps you will take if an employee breaches these standards.

This means having policies and procedures in place that outline:

  • how you expect employees to behave;
  • how to conduct an investigation into employee misconduct; and
  • the disciplinary steps you’ll take if an employee breaches workplace standards.

Misconduct is unacceptable behaviour by an employee in the workplace, or a situation in which your employee breaches or acts inconsistently with a duty they owe you.

Common examples of misconduct include:

  • consistent lateness;
  • making abusive comments to work colleagues;
  • using offensive language in the workplace;
  • incidents that are more serious, such as:
    • being intoxicated at work;
    • stealing company money;
    • sexually harassing a co-worker; or
    • accessing, storing or distributing pornographic material at work.

Unlike unsatisfactory work performance, which concerns the capacity or competence of an employee to perform their required tasks, misconduct relates to deliberate or careless acts or omissions by an employee, and may not be directly related to their work performance.

Misconduct is different to unsatisfactory work performance in two important ways:

  • warnings are more significant for underperformance than they are for misconduct; and
  • the connection between the employee’s conduct and their employment may be harder to establish in cases of misconduct.

You should consider developing and implementing management guidelines for dealing with misconduct. A management guideline is an internal document that guides managers on how to handle a particular workplace issue.

If an allegation of misconduct has been made against one of your employees, you will need to conduct a workplace investigation into that allegation to make a finding and determine the best course of action. That is, disciplinary action or dismissal.

Being able to respond to employee misconduct quickly, confidently and effectively – while minimising any legal risk – will help ensure the productivity of your business remains uncompromised.


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