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Gross or serious misconduct.

Gross or serious misconduct.

What is Gross (or Serious) Misconduct?

Gross misconduct is behaviour in the workplace that is considered a serious breach of the employment agreement, an illegal or dangerous activity. If an act of gross misconduct is deemed serious enough – even for a first offence – the employee found guilty may be dismissed without notice or pay in lieu of notice.

The Fair Work Regulations define serious misconduct as behaviour that causes serious and imminent risk to the reputation or profits of the business or health and safety of another person, or is deliberate behaviour inconsistent with continuing the employment. Usually, it means theft, fraud, assault, or intoxication at work.

It is important that employers know the difference between general misconduct and serious misconduct. Even an employee dismissed without notice can submit an unfair dismissal claim. So you need documented evidence to prove the conduct was serious enough to justify the instant dismissal.

Types of Gross Misconduct

What is seen as gross misconduct in the workplace depends on the type of company, and accepted behavioural standards in that sector or industry. Choosing the right response also depends on the severity of the act and whether it negatively impacts the company’s finances, reputation or relationship with clients.

As an employer, it is vital that you can easily spot signs of gross misconduct and respond with the correct disciplinary procedure. If you make the wrong move in a heated moment you could face an unfair dismissal claim.

Here are some of the most common examples of gross or serious misconduct in the workplace:

  • 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: Deceiving a person or company by modifying financial documents, personal information, healthcare and insurance details, or details about company assets. This may be done to gain an unfair financial advantage, hide company secrets, and seek favour with shareholders.
  • 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. This also extends to the unauthorised release of confidential material.
  • 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 Procedures

If one of your employees carries out gross misconduct, you may have reasonable grounds to dismiss that employee without notice or pay in lieu of notice.

However, depending on the severity of the act, you may want to investigate the matter and gather evidence before you resort to immediate dismissal. By carrying out an investigation first, you can prove that you took reasonable steps to review the situation and this evidence may aide you in unfair dismissal claims.

Here are some easy steps to follow when you investigate the circumstances of misconduct:

  • Choose an internal or external investigator who is qualified and has experience in investigating misconduct cases.
  • Interview all parties involved in the matter to gather different opinions and perspectives.
  • Directly interview the accused employee, explain the reasoning behind the investigation and give them a chance to explain their side of the story.
  • Maintain records of all interactions and steps taken throughout the investigation.

If you need help with this process, refer to your employee handbook or seek advice from an employment relations specialist.

Based on the results of the investigation you can decide whether or not to terminate an employee for misconduct. Keep in mind you must still give the employee a written notice of termination, a brief statement that explains the reason for the termination, and any entitlements or payments owed to the employee (e.g. annual leave).

Employsure offers specialists in all aspects of gross or serious misconduct. For peace of mind, please contact us on 1300 651 415 to learn more.

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