What is misconduct?
There’s a wide variety of things that can be construed as misconduct, which may include:
- Unsafe behaviour or placing others in unsafe situations
- Breaches of employment agreement clauses
- Behaving unprofessionally
- Breaching confidentiality
- Sexual harassment
- Bullying behaviour
- Repeat tardiness
- Theft or fraud
These are just a few examples, and to be on the safe side, it is good to include the list of things you will consider misconduct in your employment agreement and policies.
In some instances, misconduct could be minor and therefore dealt with informally. It is wise to put it in writing, and if this behaviour continues, more formal action should be taken.
Misconduct versus Serious Misconduct – know the difference
Serious misconduct is described as ‘serious’ because it could have the effect of destroying or undermining the relationship of trust and confidence between an employee and employer. Without this trust and confidence, an employment relationship can’t continue.
If an employer conducts a fair investigation and disciplinary process and then decides that serious misconduct has taken place, they may choose to dismiss the employee.
An instance of misconduct that is not serious doesn’t, on its own, undermine or destroy the relationship of trust and confidence between an employee and employer. An instance of misconduct would not justify a dismissal unless it is repeated.
Identifying serious misconduct
The key question to ask is whether the misconduct undermines or destroys the trust and confidence an employer has placed in the employee. This is more likely if the misconduct could impact the employee’s ability to perform their job, such as:
- the employee is a security guard and is guilty of violent behaviour, this might cast doubt on the employee’s ability to provide security safely
- the employee is in a position of trust (e.g. has access to sensitive information or manages finances) and they have stolen money
Serious misconduct usually involves the employee acting deliberately, but there may be circumstances in which an employee acts so carelessly that it amounts to serious misconduct.
Whether the behaviour is actually serious misconduct will depend on the facts of each case, including the employee’s explanation of the incident. This must be explored during a fair investigation and disciplinary process for both misconduct and serious misconduct.
Misconduct examples:
- Using inappropriate language on occasion
- Internet or e-mail misuse occasionally
- Minor instances of failing to follow an employer’s reasonable and lawful instruction
- Minor breaches of the employment agreement e.g. inappropriate clothing
- Infrequent tardiness
Serious Misconduct examples:
- Violent behaviour
- Bullying
- Harassment
- Theft or fraud
- Behaviour that endangers the health and safety of the employee or others
- Use of illegal drugs at work
- Drinking on the job
- Dishonesty
Employee actions outside of work
Employees who behave poorly outside of work may also be at risk of dismissal if their actions can be linked back to their work and cause concern or disrepute for their employer.
Whatever you do, always follow a fair process and act in good faith. Click here to learn more about the process.
