Have you received notice of allegations of misconduct and are not sure what to do? Are you unsure of the process and your rights? Or are you the employer and want guidance on how to deal with misconduct? This article will provide general guidance on how misconduct is dealt with in the workplace and what support we can provide you. For legal advice, we recommend you contact us directly to provide personalised support.

What is misconduct in the workplace?

Misconduct is an act or actions that typically contravene a workplace policy, code of conduct, employment contract or values of the employer. The actions generally constitute improper behaviour in the performance of one’s role and differ from underperformance or an incapacity to work deriving from an illness or injury.

Examples of misconduct include: acting negligently, dishonestly, carelessly, without proper authorisation and/or contrary to a lawful and reasonable direction.

Serious misconduct involves a higher level of wrongdoing. It is defined as follows:

“(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

 (i)  the health or safety of a person; or

 (ii)  the reputation, viability or profitability of the employer’s business.”[1]

Examples of serious misconduct include: theft, fraud, assault, sexual harassment, intoxication at work and a refusal to carry out a lawful and reasonable instruction consistent with the employment contract.[2]

What is the process when there has been misconduct?

Alleged misconduct is usually brought about by a complaint made by a colleague/customer (‘complainant’) or from an observation of the employer. The employer may undertake a preliminary investigation themselves to ascertain that the complaint has substance. This may involve interviewing other workers or people involved.

Where there is concern that an employee has potentially misconducted themselves, the employer may issue a notice of allegations to the employee for comment – either maintaining the preliminary investigation or escalating to a full investigation.

For medium to larger employers, or where there is a conflict, an external investigator may be appointed to gather information, interview parties and make a finding (whether the misconduct is substantiated or unsubstantiated). There is usually a misconduct or disciplinary workplace policy by which governs the process.

The standard of proof required is the civil standard, this being ‘on the balance of probabilities’ that the conduct occurred, even where the matter to be proved involves criminal conduct or fraud.[3] It is not the investigator’s job to recommend disciplinary action if an allegation is substantiated, that is for the employer to determine.

Where the outcome confirms an allegation has been substantiated, an employer may decide to discipline or sanction the employee. The type of discipline includes: issuing the employee a warning/reprimand, requesting they undertake further training, demote them, re-assign their duties, reduce their salary, request reimbursement or terminate the employee’s employment.

If the alleged conduct comprises serious misconduct, an employer may not need to conduct an investigation or afford the employee an opportunity to respond before taking disciplinary action. They may proceed in terminating them without notice (also known as summary dismissal). However, the employer needs to have strong evidence to establish that the serious misconduct occurred.[4] Surprisingly, the employer is permitted to rely on evidence to retrospectively affirm their decision to take discipline.[5]

What are an employee’s rights when it comes to misconduct proceedings?

With the exception of serious misconduct which may proceed straight to summary dismissal, an employee’s rights broadly include:

  • Procedural fairness – that is, to be advised of the allegations before any decision is made;
  • Sufficient particulars – the right to have the allegations in writing with details (dates, locations, alleged misconduct, and reference to what policy or contractual obligation has been breached);*
  • To respond – whether verbally or in writing – or refrain from responding;
  • Support – whether that be enabling a support person to accompany the employee to any meeting involving the misconduct, finding or disciplining, and offering counselling services;
  • Confidentiality – such as not informing other colleagues of your allegations, noting witnesses may need to be questioned.

*Note that the employer does not have to provide a copy of the complaint or reference the names of the people involved, so long as there are sufficient particulars to identify the wrongdoing.

What are an employer’s rights when it comes to misconduct proceedings?

An employer has rights too when investigating misconduct, largely including the ability to undertake:

  • Suspension – of an employee with or without pay when under investigation, including access to the employer’s systems;
  • Investigation – to seek information from other employees who may be useful in the investigation or review emails/documents involving the employee;
  • Confidentiality – requesting an employee and witnesses to keep the matter confidential and not consult with others;
  • Direction – by requiring the employee to attend a workplace meeting when lawful and reasonable to do so;
  • Show Cause – issuing a notice that advises the employee there is sufficient information to warrant substantiation of misconduct and discipline action; and
  • Disciplinary action – where the conduct has been substantiated.

How can Snedden Hall & Gallop help you?

Whether you are the employee or employee, we can assist you.

In the first instance, Snedden Hall & Gallop can offer initial advice consultations to advise you on how to proceed and to confirm your rights and obligations when there is alleged misconduct.

  • For the employer, we can also help prepare correspondence (e.g. notice of alleged misconduct, outcome of investigation, show cause notice or disciplinary notice) or lead the workplace investigation.
  • For the employee, we can also assist in advising on and drafting your response in consultation with you, attend as your support person or prepare legal claims post-disciplinary action (e.g. an unfair dismissal claim or general protections claim where available).

[1] Fair Work Regulations 2009 (Cth) reg. 1.07. [2] Ibid reg. 1.07(3). [3] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] 110 CLR 445. [4] Briginshaw v Briginshaw (1938) 60 CLR 336. [5] Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 410, 430.