Identifying Misconduct

When deciding how to respond to misconduct, an employer must first identify which type of misconduct they are looking at. They must then ensure they conduct a fair investigation and disciplinary process.

Misconduct vs Serious Misconduct

Misconduct can be at two different levels: Misconduct and Serious Misconduct.

Serious misconduct is labelled ‘serious’ because it can produce the effect of destroying or undermining the relationship of trust and confidence between an employee and employer. Without this trust and confidence an employment relationship cannot continue.

If an employer conducts a fair investigation and disciplinary process and then decides that serious misconduct has taken place, they may choose to dismiss the employee.

An instance of misconduct which is not serious does not, on its own, undermine or destroy the relationship of trust and confidence between an employee and employer. Any one instance of misconduct may not justify a dismissal unless it is repeated.

Identifying serious misconduct

The key question for an employer or investigator is whether the misconduct undermines or destroys the trust and confidence an employer has placed in the employee. This is more likely if the misconduct could impact the employee’s ability to perform the job, for example:

  • If an employee is in a position of trust (e.g. has access to the cash register) and they have stolen money.
  • Has sexually or racially harassed a fellow employee

Serious misconduct usually involves the employee acting deliberately however there may be circumstances in which an employee acts so carelessly that it amounts to serious misconduct.

Employment agreements and serious misconduct

Some employment agreements or workplace policies list examples of serious misconduct. Even if an employee does one of these examples this does not necessarily mean that serious misconduct occurred.

An employer can still dismiss an employee for serious misconduct even if their employment agreement or workplace policies do not list their behaviour as serious misconduct. The question to ask is whether the misconduct has undermined or destroyed the trust and confidence an employer has placed in the employee.

Repeated misconduct

A fair investigation and disciplinary process must be carried out for each instance of misconduct, whether it is for the same behaviour or something different.

It is common for warnings to be issued for misconduct. If the misconduct is serious then a final warning may be issued stating that the employee will be dismissed if the same behaviour happens again.

There is no finite number of warnings that need to be issued before an employee can be dismissed. If it is serious enough, a final warning can be given for the first instance of misconduct. However, the employer’s response to the misconduct must be fair and reasonable. For example, it would be unreasonable for an employer to give an employee a final warning for one-off misconduct.

Summary dismissal

Summary dismissal is when an employee is dismissed without notice. This means they are not, able to work out their notice period or be paid out for their notice period.

An employee may be summarily dismissed if, after a fair investigation and disciplinary process, they are found guilty of serious misconduct. This is conduct that deeply impairs or is destructive of the relationship of trust and confidence.

It is not necessary to have a specific clause in the employment agreement for a summary dismissal to be an option in the event of serious misconduct. If there is a clause, it will make the decision for a summarily dismissal more reasonable, provided the employer has followed proper process.

Misconduct outside work

Misconduct outside work could lead to disciplinary action or dismissal if:

  • the conduct damaged the relationship of trust and confidence between the employee and employer, or
  • the conduct brought the employer into disrepute, or
  • the conduct is not appropriate for the employee to be doing their job properly.

Malicious complaints

If an employer investigates any form of misconduct where a complaint has been made by another employee, and they determine that the behaviour complained about did not happen, they could investigate whether the complaint was brought maliciously. This will generally only happen if the investigation decides that the person who made the complaint had been knowingly lying. It would not be a malicious complaint just because an investigation decides that what happened wasn’t misconduct.