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Employsure’s Guide to Managing Misconduct and Poor Performance

Published January 05, 2016 (last updated June 17, 2020) -
Employer discusses poor performance with employee

Sometimes employees behave in ways which are unsuitable for a working environment. It is important to pull employees up on any wrong doings but knowing how best to manage this can be a little daunting.

To help, outlined below is our guide to understanding, categorising and managing employee behaviour and performance in your workplace.


Whilst there are various types of behaviour can constitute misconduct, your Employee Handbook should always clearly specify what is deemed as misconduct for your workplace. Your Employee Handbook should also describe the possible consequences should an employee engage in misconduct.

Examples of misconduct may include breaches of company policy concerning:

  • the misuse of company computers and social media
  • arriving late or missing shifts
  • poor presentation and appearance
  • unexplained absences
  • leaking confidential documents or other information
  • abusive behaviour towards colleagues or clients

If an employee has allegedly engaged in any type of misconduct, the employer must conduct a thorough investigation to gather and assess all facts. Once the investigation is completed, invite the employee to a disciplinary meeting. The employee must be given the details of the meeting in advance, particularising the allegations so they have time to prepare and organise a support person to attend if desired. Notice should always be given to the employee in writing.

In the meeting the employer must present all relevant evidence to support the allegations and it is crucial that the employee is given the opportunity to respond to allegations. Meeting minutes should be recorded and all those present in the meeting should sign the minutes and agree to all points discussed.

Serious Misconduct

When an employee engages in serious misconduct, an employer is entitled to dismiss that employee immediately. Serious misconduct is defined by Fair Work Regulations 2009 as behaviour which could threaten the business itself, other employees, suppliers or customers. A definition of serious misconduct must be included in a company’s Employee Handbook.

Examples of serious misconduct may include:

  • theft or fraud
  • physical violence towards fellow colleagues or clients
  • serious breach of workplace health and safety
  • being intoxicated at work
  • refusal to carry out a lawful and reasonable instruction which is consistent with the employee’s contract of employment.

If an employee is terminated on the grounds of gross misconduct, an employer does not have to provide any notice of termination. They are however, required to pay the employee all outstanding entitlements such as annual leave.

However, it is best practice to still provide procedural fairness to any employee who may have allegedly committed serious and willful misconduct by suspending the employee prior to a disciplinary meeting.

Misconduct vs Poor Performance

It is important for employers to be aware of the difference between misconduct and poor performance. The main difference is the level of control an employee has over their actions. Poor performance is when an employee is trying their hardest to achieve, yet for some reason is unable to do so. This may be due to lack of necessary skills or ability to perform their required tasks. However, in the case of misconduct the employee has the capability to perform, yet wilfully chooses not to.

Poor performance may be exhibited in the following ways:

  • unsatisfactory work performance and the inability to perform work duties to the standard required
  • non-compliance with workplace polices, rules or procedures
  • unacceptable behaviour at work
  • disruptive or negative behaviour which affects co-workers

When addressing poor performance an employer needs to first identify the problem. Assessing and analysing the problem allows the employer to determine how serious it is, how long the problem has existed and how far the employee is from reaching the desired performance standard.

Once the problem has been clearly identified and assessed, a meeting should be organised between the employer and the employee. The intention of the meeting is based around a Performance Improvement Plan and should include the desired outcomes of both parties and a joint solution to the problem. A clear action plan should be discussed, identifying what support structures will be put in place to assist in development. It is important to also set dates for additional meetings to review progress. The employer should always keep written records of everything discussed in the meeting in case further action is required.

Whatever the reason for poor performance, an employer should be able to offer the employee further or additional training or even find alternative employment within the organisation which better fits their skills and abilities.

Employsure can advise on all aspects of managing misconduct or performance within the workplace. If you have any questions, give us a call today on 1300 651 415 to speak to a professional.

About Employsure

Employsure is Australia’s largest workplace relations specialists. We take the complexity out of workplace laws to help small business employers protect their business and their people.

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