Misconduct and serious misconduct

by Adrian ClarkOct 9, 2021Human Resources, View All

Workplace investigations are a vital part of maintaining the integrity and fairness of any organisation. When issues arise, it’s important for businesses to act quickly, ensuring that they address concerns in a transparent and lawful manner. Different types of investigations are needed for different situations, each requiring a tailored approach to ensure fair outcomes for all involved. Below are some of the most common types of workplace investigations and when they should be used.

Misconduct Investigations
Misconduct investigations are necessary when an employee breaches company policies or behaves inappropriately. This might include theft, dishonesty, substance abuse in the workplace, or breaches of confidentiality. Misconduct can also cover actions that damage the company’s reputation or relationships with clients. It’s important to act quickly when dealing with misconduct to maintain workplace standards and protect the business from potential legal liabilities.

Harassment and Bullying Investigations
Investigations into harassment and bullying are crucial when employees report or experience inappropriate behaviour. Whether the issue is sexual harassment, racial harassment, or bullying, businesses have a duty to investigate and take action. These investigations must be handled with care, ensuring that both the complainant and the accused are treated fairly, and that the process remains confidential. Addressing such issues promptly not only protects employee wellbeing but also helps to maintain a respectful workplace culture.

Discrimination Investigations
Discrimination investigations come into play when employees feel they’ve been treated unfairly due to attributes such as race, gender, age, disability, or sexual orientation. These cases can be complex and require careful handling to ensure compliance with anti-discrimination laws in Australia. A thorough investigation is essential to ensure that all claims are properly examined, protecting the organisation from legal action and fostering an inclusive workplace.

Health and Safety Investigations
When a workplace incident or a near-miss occurs, a health and safety investigation is needed. These investigations help to determine whether existing safety measures were followed and if further action is required to prevent future incidents. Compliance with workplace health and safety laws is essential in Australia, and these investigations ensure that businesses fulfil their obligations to protect their employees.

Workplace Culture Investigations
In some cases, broader concerns about workplace culture may require investigation. This can occur when there are ongoing issues affecting morale, such as repeated complaints about management or widespread dissatisfaction among staff. A culture investigation looks at systemic issues within the workplace and seeks to identify patterns that may be harming the work environment. These investigations provide valuable insights for leadership teams to implement lasting positive change.

How AHR Can Assist with Workplace Investigations
Conducting a workplace investigation requires impartiality, expertise, and a thorough understanding of Australian workplace laws. At Assurance HR (AHR), we specialise in handling workplace investigations with a high degree of professionalism and confidentiality. Whether you’re facing allegations of misconduct, bullying, discrimination, or safety breaches, AHR has the expertise to guide your organisation through the investigation process.

Our team works with you to ensure that every step of the investigation is conducted lawfully and fairly. We help gather evidence, interview witnesses, and provide detailed reports on our findings, making sure you have all the information needed to resolve the issue. By choosing AHR, you can focus on your business while we take care of the complexities involved in workplace investigations, ensuring you remain compliant and maintain a positive work environment. Let AHR be your trusted partner in managing workplace investigations with confidence and care.

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Misconduct is behaviour that is not acceptable at work. Unlike performance, it’s usually something well inside the employee’s control, and that they are aware of—even if they don’t recognise it as misconduct.

Examples of misconduct include:

Misuse of computers
Lateness
Poor presentation
Unexplained absences
Inappropriate behaviour with other employees that affects their job
Abusive behaviour
Leaking confidential documents or information
Drinking or drug abuse at work
Corruption

It’s important to bring the behaviour to your employee’s attention as soon as possible when a situation of misconduct arises. They may or may not be aware that what they’re doing is inappropriate.

When the behaviour is not already listed in the staff handbook as misconduct, make sure you add it and ensure all staff are aware of the update. If the behaviour continues it’s important to handle the situation appropriately: employees must be given a warning and warned in writing at least once. If the behaviour is such that it warrants dismissal, this must be outlined clearly in the written warning letter.

Warning letters

If misconduct continues after a verbal warning has been issued, a letter is a next step. This is not a legal requirement, however, if things escalate to dismissal, a written warning showing that an employee had the rules and the situation clearly explained to them and that they had been given ample opportunity to address their conduct, can save you from any potential unfair dismissal claim.

A warning letter should include as much specific detail as possible, including a timeline of events (if appropriate), the reason for the warning, and a clear explanation of what you expect to be done differently.

If the misconduct continues, further written warnings can be issued. Assurance HR can provide templates for written warning letters, and, if the need arises, can attend meetings with staff as an impartial third party to address misconduct.

It’s worth noting that even if a behaviour isn’t serious in nature in and of itself (such as sloppy dressing when there’s an express dress code or uniform) if left unaddressed can have negative consequences, and hurt your business over time through undermining of leadership and poor representation of your business culture.

Serious misconduct

In some cases, negative behaviour can be so severe that it may warrant instant dismissal. This is known as serious misconduct. The Fair Work Regulations define serious misconduct as behaviour that could cause 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, or refusing to carry out a lawful and reasonable instruction that is part of the job.

Your employee handbook should have a list of behaviour recognised as serious misconduct, with a warning of the disciplinary action that will be taken in such a case.

Still not sure what you can do? Give Assurance HR a call. We can talk you through your rights and responsibilities as an employer, and how best to handle your particular situation to achieve the best outcome possible. Talk to us today, 1800 577 515.