What is workplace misconduct?
If you are facing disciplinary action at work over misconduct, understanding what may constitute ‘misconduct’ is essential.
In Australia, workplace misconduct is generally separated into two categories: general misconduct and serious misconduct. While general misconduct may result in disciplinary action up to and including dismissal, serious misconduct may justify termination of employment without notice.
Executives and employees often agree in their employment contracts to not engage in misconduct, or otherwise to follow the reasonable policies and procedures of their workplace. The term ‘misconduct’ is not always defined. Many workplaces have codes of conduct or standards of behaviour in policies, which outline what may be regarded as misconduct.
If an employee is proved to have engaged in misconduct, they may face disciplinary action up to and including termination of employment. However, unlike when ‘serious misconduct’ is proved, the employee will still be entitled to their notice period as provided by their relevant contract, enterprise agreement, or award.
Serious misconduct includes wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the employment contract or conduct that causes a serious and imminent risk to the health and safety of a person or the reputation, viability, or profitability of the employer’s business. Examples of serious misconduct include theft, fraud, assault, sexual harassment, being intoxicated at work, or a refusal by the employee to carry out a lawful and reasonable instruction.
The above meaning of ‘serious misconduct’ is reflected in the Fair Work Regulations 2009 (Cth), where the definition of serious misconduct is outlined:
Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(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.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
Steps in disciplinary processes
Failing to afford procedural fairness in a disciplinary process can be a defect that results in a court, commission, or tribunal overturning the decision.
The steps in a disciplinary process usually involve some or all of the following steps:
- Define the complaint or grievance
- Undertake a workplace investigation
- Allow an opportunity to respond
- Make findings about the issues
- Decide on disciplinary action
- Deal with any disputed decisions
While an employer may wish to act immediately in a situation involving potentially serious misconduct, it is essential to ensure proper processes are followed to minimise the risk of a successful challenge to a disciplinary decision.
Possible disciplinary decisions
If an employee is not proven to have engaged in misconduct, there is no cause for disciplinary action.
There are many different disciplinary decisions an employer can take against an employee who has engaged in misconduct. Before an adverse (unfavourable) decision is made by an employer, it is usually prudent for them to give the employee an opportunity to show cause why the contemplated decision should not be taken against them. It is an important step consistent with principles of procedural fairness.
Noting that some workplaces do not have certain disciplinary outcomes available, possible outcomes include:
- no action / management resolution
- verbal or written warning
- mandatory counselling or training
- performance improvement plan
- fine or deduction of wages
- suspension from the workplace
- demotion or loss of rank
- termination with notice
- summary dismissal
Experience shows that once a disciplinary decision has been taken, it can be difficult to overturn it. For this reason, many people facing discplinary action at work put their efforts into properly dealing with complaints or grievances during the workplace investigation or show cause phase (before a decision is made).
Contesting disciplinary decisions
There are several actions an employee may take to challenge disciplinary decisions. This includes:
- Internal appeals against disciplinary decisions, as may be provided for in a modern award, enterprise agreement, employment contract, or the policies and procedures of a workplace;
- Filing a ‘stop-bullying’ claim in the Fair Work Commission;
- Filing an unfair dismissal claim in the Fair Work Commission;
- Filing a general protections claim in the Fair Work Commission;
- Filing a discrimination claim in anti-discrimination commission or tribunal, such as the Queensland Human Rights Commission (QHRC) or Australian Human Rights Commission (AHRC); or,
- Filing a breach of contract claim in a court.
Disputed disciplinary decisions can create legal, financial and reputational risks to businesses and organisations. It is the reason why business operators, executives and managers tasked with making a disciplinary process must be mindful of the risks involved in disciplining an employee.
What rights exist for employees?
Disciplinary processes are significantly influenced by industrial awards, enterprise agreements, employment contracts, as well as workplace policies and procedures. However, a ‘fair’ disciplinary process where adverse findings may be made against an employee typically should involve consideration of the following issues:
- procedural fairness
- reasonable accommodations
- employee support
- health and safety rights
- self-incrimination privilege
- confidentiality considerations
People may ask, what does an unfair disciplinary process look like? Common concerns include:
- Bias or perceived bias from the investigator / decision-maker;
- Conflicts of interest between participants and the investigator / decision-maker;
- Failure to follow relevant policies, procedures and industrial instruments;
- Vague, unclear and unparticularised allegations;
- Changes to the allegations or investigation without explanation;
- Lack of transparency regarding the evidence gathered;
- Failure to disclose the workplace investigation report;
- Failure to give adequate notice before responses are required;
- Directions to not communicate with potential witnesses;
- Denial of access to a support person;
- Delays in progressing or finalising the investigation; and,
- Omission to investigate issues raised by a respondent.
If you are facing a disciplinary process for misconduct and seek to obtain legal advice, contact Anderson Legal for a fixed-price initial consultation to get personalised advice about your situation.