Misconduct is any behaviour that is inappropriate or unacceptable within the workplace. There are two types of workplace misconduct, General Misconduct and Serious/Gross Misconduct.
General Misconduct is sometimes referred to as simple misconduct and is usually the behaviour of an employee that demonstrates a breach of Company policy or procedure, inability to meet role or workplace obligations or duties, or inappropriate behaviour. This type of misconduct does not see the employee intend to cause or inflict harm upon another employee or the Company. General Misconduct is usually a problem for the employer to work through with an employee, implementing warnings and documenting such as evidence to initiate further disciplinary action should another situation of misconduct occur.
General Misconduct in the workplace can look like:
- Continuous unexplained absences
- Foul language
- Taking more smoke breaks than are set within Company policy
- Making personal phone calls in work time
Serious Misconduct, previously defined as Gross Misconduct, is the act of an employee that intentionally risks the health and safety of another or causes harm to another person or property within the workplace, and/or negatively impacts upon the reputation or profits of place of business. The response to such actions may vary with some cases warranting an employee to be stood down with or without pay, whilst the misconduct is investigated. In some instances, the actions of the employee may be so severe that they warrant immediate dismissal without notice or pay in lieu of notice. This is referred to as Summary Dismissal and requires the employee to leave the premises/place of employment immediately, with the usual dismissal procedure implemented afterwards. Serious Misconduct warrants increased consideration of Company policy, with the employer ensuring that the policy process is followed accordingly.
Serious Misconduct in the workplace looks like:
- Sexual Harassment
- Failing to comply with an objective within an employment agreement or contract
- Threats or acts of violence
- Damage to company property
- Under the influence of substance
- Misuse of equipment or materials that result in a breach of safety to themselves or others.
Reducing Misconduct in the Workplace
Employers can implement preventative methods to reduce the likelihood of misconduct occurring in the workplace. Efforts such as:
- Implementing regular policy training to ensure that all staff are aware of the standard, commitment and repercussions of activities and behaviours both inside and outside of the workplace.
- Holding regular performance reviews that incorporate self-evaluative and constructive feedback for improvements within workplace behaviour and performance.
- Conducting regular training and coaching around workplace conduct and upskilling staff to increase retention and satisfaction.
- Placing posters throughout the office to increase employee awareness and knowledge of misconduct.
- A fair and consistent approach in responding to both inquiries of misconduct and employer response, such as summary dismissal.
Out of Work Activities
An employee’s behaviour outside of the workplace can warrant actions of both general and serious misconduct. In accordance with the Fair Work Act, it is an employee’s duty of care to protect their place of employment and any action that impacts upon the employer negatively is considered as misconduct. Specifically, employee activities that relate to the workplace and pose a risk to the employer’s reputation, business productivity and revenue. For example, attending an illegal protest that connects directly to workplace industry and therefore the reputation of the employer.
Misconduct and Unfair Dismissal Claims
To decrease unfair dismissal claims and to increase the likelihood of such being ruled in the employer’s favour, all employer interactions need to be fair and consistent when responding to acts of Serious Misconduct. It is crucial that employers have implemented and regularly review both misconduct and dismissal policies and procedures to ensure that consistent and fair approaches are upheld.
Although an employer’s actions may be warranted in accordance with Company policy and legislation, the immediate action or summary dismissal may result in an unfair dismissal claim actioned by the employee regardless.
Third party investigation and mediation between employer and employee can be introduced to ensure that an employer’s response to acts of misconduct, particularly those classified as Serious Misconduct, are conducted fairly and consistently. Assurance HR can assist your business with such and can further review and update current misconduct and disciplinary policies to reflect best practice and process.