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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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Top stories for Misconduct

Articles


Your questions answered: How do I approach an employee submitting incorrect timesheets?

Performance Management

"Dishonesty of this nature usually constitutes serious misconduct and may be grounds for dismissal."

By Portner Press on January 7th, 2019

Misconduct leads to denial of compensation claim

Performance Management

An excavator operator baited and taunted a co-worker over a number of years until, one day, his co-worker snapped and assaulted him in the car park.

By Kelly Godfrey on July 16th, 2018

Your questions answered: Does dishonesty warrant dismissal for serious misconduct?

Performance Management

Q: If an employee engages in dishonest behaviour that could damage the reputation of the company, would this count as serious misconduct for dishonesty?

By Portner Press on July 16th, 2018

Your question answered: Ignoring grievance policies

Performance Management

Q: If employees have a right not to use a company’s grievance policy to resolve the matter – why have one at all? Would the employer be able to discipline the employee for then not abiding by the employer’s policy?

By Jeff Salton on June 4th, 2018

Skylarking worker paints a poor picture of workplace safety

Performance Management

An automotive spray painter was sacked after spaying a co-worker in an act his employer described as ‘skylarking’.

By Jeff Salton on May 16th, 2018

Your questions answered: For how long can we manage a worker’s poor performance?

Performance Management

Q: We are currently dealing with a poorly performing worker and I’m not clear on how long between each step in the process we should allow?

By Jeff Salton on May 11th, 2018

Your questions answered: Who pays to replace property stolen from the staffroom?

Performance Management

Q: What obligation does an employer have when an employee’s personal property is stolen from the staffroom by an outsider?

By Jeff Salton on May 2nd, 2018

Use these examples to get workplace investigations right

Performance Management

Most employers know that workplace investigations can be tricky. Before relying on the findings of an investigation, you must consider whether the findings can be supported by the evidence.

By Kelly Godfrey on April 23rd, 2018

Your question answered: Refusing to attend mediation

Performance Management

Q If we require two employees to attend a mediation session to resolve their long-term workplace conflict, can their attendance be enforced? If they refuse to participate, could we discipline them or issue a warning, as the direction to attend was reasonable […]

By Jeff Salton on March 12th, 2018

7 steps to prevent unwelcome disclosure

Performance Management

Employment Lawyers Australia principal solicitor and notary public Kelly Godfrey says there are seven key precautions to take when you carry out an internal investigation to ensure these apply.

By Andrew Hobbs on January 19th, 2018