How To Manage Employee Misconduct

Whether you are a professional HR manager or have been charged with managing people, at some point, you will be tasked with solving difficult problems.

Managing employee performance and employee misconduct are among the largest sources of conflict in workplaces. Both can be tricky (and legally fraught) areas to navigate at the best of times. Whilst to some extent similar issues will arise when dealing with employee performance and misconduct, you will need to consider some specific matters when dealing with each issue.  This article provides guidance on how to correctly deal with misconduct. To learn more about how to manage employee performance you might like to read our previous article on this topic.

The category of behaviours that can constitute misconduct can range broadly in seriousness, so we recommend that employers obtain legal advice appropriate to the circumstances in front of them.

1. Are you commencing the process for the right reasons?

We’ve previously discussed this in more detail in the context of managing employee performance so after reading this article you might like to head over there for more detailed information. However, in short, you should:

• Ensure any allegations of misconduct are being raised genuinely and not for the purpose of simply getting rid of an employee you no longer wish to employ.
• Don’t enter into the process with an outcome fixed in your mind.
• Be open to the fact that the employee might genuinely have an answer to the allegations that you might not have anticipated.
• Employees can tell if the process is not genuine.
• Employees who feel they are hard done by are more likely to bring a claim.
• Be mindful that you are dealing with a person. Put yourself in your employee’s shoes. If you were in their place, how would you like to be dealt with?

2. Identification of the misconduct

Clearly identify for yourself (and the employee) the misconduct the employee is alleged to have engaged in. Be as clear as possible, by providing dates and times where appropriate.

You should also identify how the conduct (if it is found to have occurred) constitutes misconduct, and what the potential consequences are.

Depending on the nature of the misconduct, it may be appropriate to provide the employee with access to the evidence that the investigation is relying on. For example, if there is CCTV footage that you are relying on which shows an employee engaging in misconduct, they should be shown the footage. It will often not be appropriate, however, to provide the employee with access to interview notes from other employees or a complainant.

It should not be a goal in any misconduct investigation to ambush the employee with allegations or evidence. Indeed, this type of process is already stressful for employees, so it is important to behave reasonably.

3. Carry out an impartial investigation

It is important that the allegations be investigated. The nature of the investigation will depend on the misconduct involved, however, it is important that investigations be handled fairly and impartially.

You may need to speak to witnesses or gather documentation. You should make sure that any employees you speak to are made aware that it is a confidential process and is not to be discussed with other staff members. You may wish to let them know that breaching this requirement of confidentiality could lead to disciplinary action so that they are aware of how important it is to keep the matters confidential. This can be a strange experience for employees who may have witnessed improper conduct, so you should keep this in mind as well.

Similarly, you should make sure that other employees who may be involved in the investigation (or who know about the allegations) keep the matter confidential as well, and be prepared to consider disciplinary action if they breach this requirement.

Where allegations involve serious misconduct, including behaviour that could be criminal, such as assault, you should consider whether it is appropriate to have an external party with experience carrying out the investigation. We have not addressed whether such conduct should be reported to the police in this article, and you might need to assess (or obtain legal advice) as to whether this is recommended or necessary in the circumstances.

With respect to reporting conduct to the policy, you should also consider the wishes of the victim of the actions, and be aware that, where there is a connection between the conduct and the workplace, a victim’s decision not to report action to the police does not mean that you, as an HR representative or manager, are not required to consider or deal with the issue.

Indeed, whilst outside the scope of our present article, employers should know that if they become aware of behaviour that poses a risk to workplace health and safety (whether to a specific employee or to all employees more generally), they may have a duty to investigate and address such behaviour even if the victim may not wish for action to be taken.

4. Provide a meaningful opportunity for a response

You should also provide the employee with a proper period of time in which to respond. If there are multiple allegations or serious allegations, it is unlikely to be reasonable to provide the employee with the allegations on a Friday afternoon, and request that they attend a meeting regarding the allegations on Monday morning. This is also the case where the allegations are technical or require the employee to review a large amount of material.

Ideally, employees should also be provided with the opportunity to respond in writing. If you interview the employee, make sure that detailed notes are taken of the interview, including all employee responses.

Depending on the nature of the alleged misconduct, a direction not to attend the workplace for the duration of the investigation may be appropriate. If this occurs, however, you may need to consider how to provide the employee with access to records (such as their work calendar, or email) which they may reasonably require to be able to respond to the allegations.

5. The standard of proof and the ‘Briginshaw’ principle

We have seen many employers and HR representatives refer to allegations having been proved, or considered substantiated, on the ‘balance of probabilities’. It is important, however, to make sure you have the balance right and to consider the evidence that is involved.

The seriousness of the allegations and the gravity of the consequences that could follow an acceptance of the allegations (i.e., where they may result in the dismissal of an employee) are matters that affect the operation of the ‘Briginshaw’ standard of comfortable satisfaction on the balance of probabilities.

The Briginshaw standard is often described as being more stringent than the balance of probabilities standard, but this is not entirely accurate. The Briginshaw standard does not change the standard of proof from the balance of probabilities. It requires that, in order to have comfortable satisfaction in relation to serious allegations, the evidence must be strong, cogent and objective. That is, the more serious the allegations, the stronger the evidence should be in order for a person to have comfortable satisfaction that such conduct occurred on the ‘balance of probabilities’.

In short, the more serious the allegations, the clearer the evidence should be before a finding can be made, even on the balance of probabilities.

6. Consider whether you are singling out the employee or if you have a part to play in the misconduct

We recommend employers engage in some introspection as part of this process. All human beings can be impacted by unconscious biases, and it is worth making sure that such biases are not affecting your approach or decision making. Consider objectively:

• Have your expectations been clearly communicated to the employee?
• Are your expectations in writing?
• Do your employees understand the expectations? Have you just assumed this is the case or have they demonstrated previously that they understand the expectations?
• Have you changed the expectations recently? This is important because if it is the case you need to ensure you have again properly communicated these expectations, that they are again in writing and the employee understands these new expectations.
• Are you treating the employee in the same way as other employees? Consider for yourself if you let some employees get away with the same behaviour as the employee in question. If so, think about why this may be the case.
• Have you accepted the misconduct for a long period of time without addressing it with the employee? If so, is termination appropriate in such circumstances? It may be more appropriate to address the misconduct and provide the employee with a meaningful opportunity to address that conduct. In those circumstances be mindful that you might be at the end of your tether in respect of the conduct but if you haven’t addressed it previously with the employee, you might need to provide a reasonable amount of time for the employee to address the conduct.
• Consider whether there might be something else going on in the workplace or in their personal lives which might be affecting your employee.

7. Keep records

This is an important, often overlooked, part of the process. Remember to:

• Take detailed notes of what is discussed during any meetings with the employee.
• Confirm any key matters discussed, in writing with the employee shortly following the meeting;
• Keep a record of any verbal feedback provided;
• Keep clear records of any investigation;
• Have a record of any evidence that was considered when making any decision, and how the decision was reached.

8. Termination

Generally, the goal of the misconduct investigation process should not, from the outset, be termination (again if this is your intention in commencing the process, consider why).  The purpose should be to investigate an issue or issues, to determine whether misconduct occurred, and then make a decision regarding continued employment.

If the business is considering termination of employment, the employee should be offered the opportunity to ‘show cause’ as to why their employment should not be terminated. This is an opportunity for the employee to provide reasons as to why they believe they should be able to remain employed.

This is not a ‘box ticking’ exercise either, but an important final opportunity for the employee to be heard. A final decision should not be made until after the employee is offered a final opportunity to ‘show cause’.

Depending on the nature of the allegations, termination may not always be appropriate where there is a finding of misconduct. This is particularly the case where the employee has a long employment history and no prior issues, or where the employee can provide a medical rationale for behaviour, together with assurances that the misconduct will not re-occur.

How you treat an employee during the termination process will, in our experience, have a direct bearing on whether the employee will be more likely to bring a claim or bad-mouth the business. Whilst you have every right to address poor behaviour remember you are dealing with a human being with emotions. Be clear, but also empathetic.

We also recommend you provide them with the details of any support services and how they can access these services. You might want to assure them that the support services are confidential, and the employer will not be given access to any information they share with the support services, as in our experience employees can be quite sceptical about the independent nature of such services.  In short, treat the employee with respect (which we discuss in more detail in our article ‘Practical Tips For Employers When Making A Role Redundant In Australia’).

Summary Of Managing Employee’s Misconduct

So, in short,

• Make sure allegations are made, and any investigation is carried out, in good faith.
• Make sure allegations are clear, in such a way as to allow the employee to understand what they are alleged to have done, and how such allegations can be addressed.
• The process should be fair and impartial.
• Reiterate to all persons involved that the process is confidential.
• Consider whether the nature and seriousness of the allegations warrant you seeking external assistance.
• Consider the balance of probabilities and the nature of the evidence you have before making the decision.
• Keep good records.
• Provide the employee with a meaningful opportunity to respond to the allegations, and if they are considered to be substantiated, a meaningful opportunity to show cause why their employment should not be terminated.
• Treat the employee with respect and consider providing them with support services or information on how they can access support services.

Let Our Employment Lawyers in Sydney Help You

Our team of skilled employee lawyers in Sydney can assist you with navigating this difficult area.

Book a complimentary 15-minute consultation or call us at 1300 80 67 80.