Gross or Serious Misconduct

What Is Serious Misconduct In The Workplace?

Serious misconduct is behaviour in the workplace that is contrary to the continuation of ongoing employment, or that is a threat to a person or the business, often an illegal or dangerous activity. If an act of misconduct is deemed serious enough – even for a first offence – if substantiated, the employee may be dismissed without notice or pay in lieu of notice.

Serious Misconduct – Fair Work Regulations

The Fair Work Regulations define serious misconduct as wilful and deliberate behaviour that is inconsistent with the continuation of the employment contract or causes serious and imminent risk to the reputation, viability or profitability of the business, or health and safety of a person. It includes theft, fraud, assault, intoxication at work or failure to follow a lawful and reasonable instruction that is in keeping with the employee’s contract of employment.

It is important that employers know the difference between general misconduct and serious misconduct, as serious misconduct can result in summary dismissal, ie. dismissal without notice. However, even an employee dismissed without notice can submit an unfair dismissal claim and may even succeed if there is no procedural fairness. To best position your business for success in the event of a claim, it is recommended that you follow a fair process and document evidence.

Types of Gross Misconduct

What is seen as misconduct in the workplace depends on the type of company and accepted behavioural standards in that sector or industry. For example, the use of bad language may be acceptable in certain industries and unacceptable in others. The employee handbook may set out policies for standards of behaviour and conduct expected from an employee and even outline disciplinary procedures in the event of a breach.

Misconduct is when the employee deliberately behaves in an improper manner. General misconduct, for example the use of in-appropriate language or minor policy breaches such as lateness or inappropriate clothing, generally won’t warrant termination of an employee’s employment but may if continued over time and, in particularly, in the event the improper behaviours are not rectified subsequent to corrective action (eg. Written warning).

Whether summary dismissal is an appropriate response to an employee’s misconduct should depend on the severity of the act, whether it was done on purpose and is contrary to the continuation of the employee’s employment, or  whether it negatively impacts the health and safety of a person, or company’s finances, reputation or relationship with clients, as well as the outcome of the disciplinary process.

As an employer, it is vital that if you are considering dismissing an employee who has access to unfair dismissal for serious misconduct you start a disciplinary procedure, make sure you have a valid reason for dismissal and conduct a fair process in coming to the decision to dismiss.

Examples Of Serious Misconduct

Here are some of the most common examples of serious misconduct in the workplace that may warrant summary dismissal depending on the circumstances and provided a procedurally fair process is followed:

• Damage to company property and vandalism: Having the intent to cause major damage to, or deface company property. Examples include tagging and graffiti, tampering with machinery, and causing damage to the commercial property itself.

• Fraud: Deceptive and dishonest conduct aimed at profit or gaining an advantage, for example by modifying financial documents, personal information, healthcare or insurance details.

• Theft: The act of stealing company property with the intent to keep for oneself. Some employees may take advantage of their position or status to steal company supplies, equipment, machinery, confidential information and financial records.

• Breaches of Safety: Intentional disregard for the safety of themselves and others. This may include the misappropriate treatment of dangerous materials, failing to lock-up or secure certain parts of the workplace, or the misuse of company equipment or machinery.

• Intoxication at work: Consuming drugs and alcohol, either before or during work hours, may inhibit a person’s ability to work safely or impair their capacity to complete their duties.

• Threats or Acts of Violence: Verbally abusing staff or customers, acting out physically against someone, and stalking or predatory behaviour.

Disciplinary Procedure

If one of your employees engages in serious misconduct, you may have reasonable grounds to dismiss that employee without notice or pay in lieu of notice after first implementing a disciplinary process.

If you are required to undertake disciplinary action, here are some easy steps you can choose to follow:

• Investigate and establish the facts and consider suspension of the employee on full pay if the alleged conduct amounts to serious misconduct or there might be a reasonable threat to persons, property or the business;

• Write to the employee outlining the allegations, the possible ramifications if the misconduct is proven, the date and time for the disciplinary meeting;

• The employee should be provided with a reasonable opportunity to prepare for the meeting. The standard should be at least 24-48 hours’ notice of the meeting;

• The meeting is the employee’s opportunity to present extenuating circumstances (if any) and the employer should close the meeting to take time to consider or further investigate the employee’s responses before deciding on the balance of probabilities if the allegations are substantiated and consider an appropriate outcome in the circumstances. Outcomes include a written warning, a letter of concern, reprimand, no action, final written warning, verbal warning, or even termination.

If you need help with this process, refer to your employee handbook or call us for free initial advice on 1300 651 415.

BrightHR

You can keep track of employee records and all the documents that form part of the investigation and the disciplinary process and store them securely in the cloud through our BrightHR software. You can find out more here.

Termination For Serious Misconduct

To minimise risk of an unfair dismissal claim, the reason for termination must be valid in that it can be justified in the circumstances, and a procedurally fair process must be followed leading up to the dismissal. When considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work Commission will look at all of the following factors:

• whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

• whether the person was notified of that reason (in writing);

• whether the person was given any opportunity to respond to that reason;

• any unreasonable refusal by the employer to allow the presence of a support person for any discussion relating to the dismissal;

• the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in making the dismissal;

• the degree to which the absence of dedicated human resource management specialists or expertise in the employer’s enterprise would be likely to impact on the procedures followed in the dismissal;

• the age and the length of service of the employee;

• whether the employee was provoked;

• whether there are any other extenuating circumstances;

• whether the employee was in a leadership position; and

• any other matters the Fair Work Commission considers relevant.

If based on the disciplinary process the allegations are substantiated on the balance of probabilities then you can decide whether or not to terminate the employee, bearing in mind the example you may be setting for other employees. Keep in mind you must still give the employee written notification of termination, in this case, a brief statement that explains the reason for the termination ie. on what basis the allegations are substantiated and sets out any entitlements or payments owed to the employee (e.g. annual leave).

Employsure can help you better understand misconduct and disciplinary procedures. Call us for free initial advice on 1300 651 415.