May102021
Misconduct

What is Serious Misconduct and What Process Do I Use?

Serious misconduct occurs when some action by the employee undermines or destroys the trust and confidence an employer has placed in the employee. This is more likely to happen if the misconduct could impact the employee’s ability to perform the job, or the actions affect the safety of other staff: for example:

  • If an employee had allegedly displayed violent behaviour like punching a colleague or client, this would cast doubt on the employer’s ability to provide a safe workplace for other staff and clients.
  • If an employee is in a position of trust, like having access to a cash register, and they have allegedly stolen money, they would be unable to continue in that role.

Serious Misconduct can also involve bullying, harassment, fraud, illegal drugs, theft of company property, violent behaviour, intoxication at work.

Serious misconduct is usually NOT using inappropriate language, internet misuse, minor instances of failing to follow an employer’s reasonable and lawful instruction, minor breaches of the employment agreement like wearing inappropriate clothing to work or lateness.

Serious misconduct usually involves the employee acting deliberately however there may be circumstances in which an employee acts so carelessly that it amounts to serious misconduct.

Serious misconduct needs to be investigated. A process is provided below.

Step-by-Step Guide to Investigation Meetings for Serious Misconduct

NOTE: This information guide is not intended to replace legal advice as all investigations are based on different facts. It is intended as information guide only so you gain a basic understanding of the steps that are involved to prevent personal grievances.

Step 1 – Collect Information

  • Gather the facts as best you can about surrounding the allegation.
  • It is often better to have an independent person who has no direct involvement with the employee or anything to do with the allegation.
  • If this is not possible the person investigating the allegation must remain neutral and act in good faith at all times while collecting the information.

Ways to collect information

Take time to do this thoroughly.

Identify which people to interview

  • Be clear with the witnesses what the purpose of the investigation is and who the information will be shared with,
  • Ask open-ended questions
  • Follow up with clarifying questions,
  • Take notes of the meeting
  • Or record if the interviewee gives permission for this to be done.

Camera Footage

Collect any footage showing the allegation

Checking the Businesses policies regarding the allegation

Look at current policies to see if the employee breached any of these.

Review of business documents involved

Some documents may assist in the investigation.

Step 2 – Analyse the information that has been Collected & Report

Use the information you have collected and make a fair and balanced assessment of what took place.

Write a report on the findings including:

  • What was learned from the investigation
  • An opinion of whether the findings show the allegations to be true or untrue
  • Address each concern or issue raised
  • How the findings relate to your opinion
  • How the evidence relates to the allegations.

Step 3 – Request Employee to Attend Meeting

  • Write a letter to the employee requesting attendance at a meeting to discuss the report
  • Attach a copy of the report so employee has all documentation.
  • Advise the probable outcome based on the Report.
  • Include the fact that the employee can bring a support person to the meeting.
  • Advise that the employee will be asked to give feedback on the Report and that this feedback will be considered before the Final Decision is made.
  • Give at least 3-5 days’ notice of meeting.

Step 4 – Formal Review Meeting

  • Review the Report with the employee.
  • Ask for employee feedback.
  • Ask employee if they want to receive Final Decision in person or delivered in writing.
  • If they choose in person adjourn meeting to consider feedback.
  • Reconvene meeting and deliver the proposed Final Decision to Employee.
  • Ask the employee for to give feedback on the proposed decision.
  • Make your final decision.
  • Follow up with a written letter
  • Record the discussion points and outcome of meeting.
  • If they choose delivered in writing bring meeting to a close.
  • Record the discussion points and outcome of meeting.

Write a letter to the employee informing them of the Final Decision.

  • Summarise the allegations and findings of investigation
  • Comment on the employees feedback
  • Include the decision based on the evidence provided

Include the Outcome

  • No disciplinary action but Personal Improvement Plan
  • No disciplinary action and resume normal work
  • No disciplinary action and move to an informal Performance Management Process
  • Disciplinary action with a Written Warning
  • Disciplinary action with Dismissal
Category: Misconduct