Updated on the 17th of September 2020
Misconduct at work
Dealing with employee misconduct at work can be tricky even for the most seasoned business owner. If you have an employee who’s not meeting expectations, or is not behaving in an appropriate way, you must deal with the issue head-on and make a plan to improve it. Of course, there are varying degrees or types of employee misconduct, so how you deal with the issue head-on depends to some extent on the severity of the matter. To understand how, it’s important to understand what employee misconduct examples look like.
Examples of misconduct in the workplace:
- Using inappropriate language
- Wearing inappropriate clothing
- Internet misuse
- Failing to follow reasonable instructions
Examples of serious misconduct in the workplace:
- Violent behaviour
- Harassment and bullying
- Theft or fraud
- Endangering the health and safety of the employee and others
Whatever the issue, dealing with the matter head-on does not mean making a rash decision and firing someone on the spot. There are certain steps you need to follow. So, we’ve asked HR expert, Stephanie Hosking from our partner, Key Business Advisors, on how she helps her clients deal with tricky conduct issues in the workplace.
Workplace code of conduct: A discussion on employee misconduct in the workplace
EH: Stephanie, thanks for joining us today. Handling employee misconduct is a vexed issue for business owners. What advice do you give your clients?
SH: You know, the very best way to deal with conduct issues is to prevent misconduct in the workplace from initially happening. You can minimise the chance of issues arising by fostering a work environment where expectations are clear. A great way to do this is by having a workplace code of conduct, and the right workplace policies in place. All uniformly communicated and consistently enforced. Your workplace policy manual is not so much an HR document, but one of the most important business documents you have. It’s your set of guidelines on how your people should act, and what they can and can’t do as an employee of your business. A good policy manual includes a code of conduct, and a policy for managing underperformance. This is where you define workplace misconduct and the consequences that outline your process for dealing with such behaviour.
Your policy manual should also include other policies covering any areas of behaviour you expect from your staff, such as:
- the appropriate use of telephones, email and the internet in your business
- how to protect confidential information within your business
- guidelines on discrimination and harassment
- acceptable dress code
EH: Stephanie, you mentioned dress code. Many business owners are confused about stipulating dress code, what’s your take?
SH: You can make directions about the appearance of your staff, but you have to be careful about making blanket rules around appearance because it’s important not to breach discrimination laws. You need to make sure the reason relates to a genuine requirement for the business, or to the occupation. If it relates directly to workplace health and safety, this should be straightforward to enforce. And should a worker not wear their safety gear without good reason – despite education and training – you can consider it serious misconduct and follow disciplinary processes.
Employee misconduct training
EH: What’s the best way for businesses to ensure everyone abides by their code of conduct?
SH: Business owners need to communicate the policies with everyone and provide training where necessary. It’s good practice to remind your employees on a regular basis as to your behavioural expectations. There’s no better way to promote great behaviour than to reward it. Make civility part of your every day in your internal newsletter articles, or part of your recognition and rewards program. Managers need to lead by example, and understand their roles as managers. Whenever something happens, they act upon it quickly and in the right way. So, it’s vitally important to train supervisors and managers on what to do, including conducting workplace investigations into allegations of misconduct.
EH: Despite their best efforts to ward off any undesirable behaviour in their workplace, things do happen. Stephanie, what guidance do you give to your clients about handling a misconduct issue?
SH: I’d say there are just three things business owners need to remember about handling a misconduct issue. And they are: Process. Process. Process. Even where you have a valid reason to dismiss an employee, it’s critically important to follow due process. This means you must take all reasonable steps to investigate the matter or concerns, explain the allegations to the employee, and give them an opportunity to respond. You must consider the employee’s explanation when considering to dismiss or take disciplinary action for employee misconduct. Procedural fairness is fundamental to how the Fair Work Commission decides on unfair dismissal cases. So, should an unfair dismissal claim arise after you dismiss an employee for misconduct, then you need to be able to substantiate every step you made to reach the decision. It’s at times like these that the value of having an HR expert to hand is abundantly clear to see.
You need to document all aspects of the process which calls for some top-notch record keeping, including:
- Detailed meeting notes.
- A thorough investigation report, showing the person was at fault.
- Evidence that you provided the employee with the opportunity to respond and you took this response into consideration.
- The termination letter explaining why the employee was dismissed.
As you can see, if you fail to meet with the employee in question or you don’t investigate the matter thoroughly taking extensive notes, your business will find it difficult to defend the action you took. In matters of unfair dismissals, the process you follow is just as important as the facts of the misconduct of employees.
Document employee misconduct
Here’s a specific process I follow with my clients:
- Invite the employee to an interview to discuss the misconduct issue giving at least 24 hours’ notice to prepare.
- Clearly explain the specific example of inappropriate behaviour and try to find out if the workplace rule is unclear or unknown to the employee. The rule may be poorly explained or has not be uniformly communicated and enforced.
- Offer help, support, encouragement, and training if it seems that the employee is lacking knowledge of the rule.
- Agree with them on a concrete plan for improvement and spell out what changes are expected in their behaviour. Outline the consequences if there is no noticeable improvement.
- Document everything you agree on, and give the employee a copy of your meeting notes.
- Set a date for a short review meeting.
If the employee’s behaviour doesn’t improve, only then consider taking further disciplinary action. Should you need to do so, your notes will need to accurately document the efforts you made to resolve the inappropriate behaviour over a reasonable period.
Dealing with employee misconduct is just one of the many tricky tasks all employers need to get right and to ensure their business is being HR compliant. So, if you’re spending more of your time on managing your workforce, rather than strategically growing your business, then download our Essential Guide to HR Compliance below.