So an employee has misbehaved, but how badly? Does it warrant dismissal? Or a written warning?

Well it’s important that we firstly understand the difference between misconduct or serious misconduct.

What is misconduct?

  • Failure to follow company policy or reasonable directions
  • Think of it more as a disobedience issue

Examples: negligence, aggressive behaviour (not including violence), wilful disobedience, misuse of computer systems

What is serious misconduct?

  • When there is a serious or imminent risk to the health and safety of another employee, the reputation or profits of the employers business
  • Deliberately and continuously behaving in a way that is inconsistent with the employees employment obligations

Examples: violence including sexual assault, theft, unlawful behaviour such as dealing with illegal drugs, driving a company vehicle while over the legal limit of 0.05.

The question now is, what warrants a formal warning and what warrants a dismissal?

As a people Manager I’m sure you have all come across a tricky situations and you have asked yourself how serious is it? An employee may have swore at another employee, an employee may have viewed or downloaded explicit material from the internet, you may have asked an employee to take lunch at a certain time each day but they do not listen and refuse to do so or two employees may come to fisty cuffs in the workplace.

Each of these examples are varying levels of misconduct and each will have a different outcome.

So now I hear you ask, how do I deal with misconduct and serious misconduct? Let’s take a look!

Initial Inquiry- A complaint may be made or you as a Manager may witness behaviour that is inconsistent with the employee’s obligations to the company.

Investigation- Allegations of satisfactory substance will be formally investigated. The allegations must be investigated as soon as possible after the alleged misconduct. You will need to gather as much information surrounding the events/actions that took place, this may include interviewing witnesses. The employee in question will be informed of the investigation.

Non-attendance at work or stand down during investigation- Depending on the nature of the allegations, the employee may be directed not to attend work while a full investigation is carried out. The employee will usually be stood down with full pay during this time.

Proceeding to the interview- An employee must be given prior warning of the interview and advised of the nature of the interview. Always allow the employee to bring a support person, this may be a fellow employee, family member or union representative.

During the interview you must make sure:

  • Allegations are specifically put to the employee
  • Opportunity is given to the employee to respond
  • Depending on the nature of the allegations:
  • The allegations will be set out in writing
  • The allegations will be confirmed in writing after the interview

Written allegations report- A written report should be produced at the end of the interview process. The report should outline:

  • Allegations
  • Investigation process
  • The findings of the alleged misconduct or serious misconduct
  • The employee’s responses to the allegation(s)
  • A suggested course of action

Disciplinary action- If it is determined that disciplinary action is warranted, the employee will be advised of the decision in writing and a copy of the letter will be placed on the employee’s file. If the employee is to receive a written warning, the warning must outline the misconduct, the required improvement and the consequences if the behaviours/actions continue. If the employee is to be dismissed for serious misconduct, a letter will be provided to the employee outlining the serious misconduct that resulted in dismissal. The employee will then be escorted from the premises immediately.

Employee file record- All documentation including interview notes/report, formal written warning or termination letter must be placed on the relevant employee files.

  • I have had some absolute crackers in my time ranging from simple misconducts such as repeatedly arriving late to work (without a care for the impact on customers or co-workers! This did however lead to dismissal after three written warnings about the same issue), a punch on between two employees (after an investigation, this lead to the dismissal of one of the employees involved) and selling drugs at the office (this resulted in an instant dismissal as a result of serious misconduct).

It is amazing what some people think is perfectly acceptable behaviour at work. To determine the outcome of each misconduct you must follow a fair and reasonable process like the one above. Please remember in the case of serious misconduct the above process may not always be followed and it may warrant an instant dismissal however the process of procedural fairness must prevail in all cases of employer decided terminations.

Dealing with misconduct and serious misconduct isn’t easy or always black and white. If you would like help with these issues call HR Gurus, it’s what we do!

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