This guideline is to assist employees and their managers understand the framework within which to deal with unacceptable employee conduct and misconduct.
A Disciplinary & Termination Policy addresses performance issues. Where concerns about both an employee’s performance and conduct are raised, managers will need to consult with HR for assistance in determining the appropriate means to address the issues.
The guideline will be subject to the terms of an applicable award, enterprise agreement and / or other industrial instrument.
Conduct issues versus misconduct
There are many forms of conduct which are unhelpful, undesirable or unacceptable in the workplace but which may not amount to misconduct. Some examples include treating others in the workplace with disrespect, behaving in a manner which disrupts others in the workplace and displaying a poor attitude about the company / business.
Misconduct occurs where an employee breaches their obligations by engaging in conduct which is inconsistent with their legal and/or contractual obligations.
Some examples include:
- fraud, theft or other forms of dishonesty;
- a serious breach of a Code of Business Conduct;
- misuse of client resources;
- improper disclosure of confidential information;
- unlawful discrimination or sexual harassment of another person;
- making a spurious complaint about another person’s conduct;
- endangering the safety of any person at the workplace;
- fighting at the workplace;
- attending work while under the influence of alcohol or illegal drugs.
- disobeying without proper reason a lawful direction.
There are many other forms of misconduct.
In some cases, misconduct is so serious that it will result in the immediate termination of an employee’s employment.
What process will be followed?
As there are many different forms and degrees of unacceptable conduct and misconduct, the appropriate way to deal with them will vary depending on the circumstances. There is no one process which will apply in all circumstances as every situation is unique. The process may involve informal or formal counselling, an informal or formal investigation or a combination of these.
In dealing with unacceptable conduct and misconduct HR will comply with any applicable legal obligations, including any obligations contained in an applicable award or other industrial instrument.
Consult with HR
It is very important for managers/ supervisors to consult with HR at an early stage if there is a concern about an employee’s conduct. HR can ensure that a process is implemented which is appropriate for the circumstances and complies with any legal obligations. The role of HR is to provide managers / supervisors with appropriate tools to assist them in dealing with an issue.
Employees should also consult with HR if they have any concerns or questions about the process.
Talk to the employee
Managers / Supervisors should address any concerns about an employee’s conduct, no matter how minor they may seem. This should be raised with employees at the earliest opportunity. This may often prevent minor conduct concerns becoming serious.
Key principles for managing conduct
While the process for dealing with conduct may take many forms it should always:
- involve open communication between an employee and their manager/ supervisor about the issues;
- provide the employee with a clear understanding of the issues with their conduct and the aspects which they are required to cease or improve;
- provide the employee with an opportunity to cease or improve their conduct to the required level; and
- provide the employee with a clear understanding of the consequences if their conduct does not cease or improve to the required level.
Key principles for managing misconduct
While the process for dealing with misconduct may take many forms it should always:
- involve a thorough review of the relevant facts prior to making any finding that an employee has engaged in misconduct; and
- provide the employee with an opportunity to respond to allegations and, if necessary explain their conduct.
In addition, where an employee is found to have engaged in misconduct which is not sufficiently serious to result in the immediate termination of their employment, the process should always provide the employee with a clear understanding of the consequence if they engage in any form of misconduct in the future.
Consequences of unacceptable conduct or misconduct
Unacceptable conduct will, in most cases, result in some form of disciplinary action which may include:
- one or more informal warnings;
- one or more formal written warnings;
- a requirement to attend counselling or training sessions;
- establishment of a conduct management plan;
- termination of employment.
However, misconduct will always result in disciplinary action at least at the level of a formal written warning and may result in termination of employment without notice.
Where any form of disciplinary action is being considered, HR must be involved.
Where there is an allegation that an employee is guilty of misconduct, the employee may be suspended on full pay while HR investigates the allegation. Where suspension is being considered HR must be involved.
An employee may, if they wish, have a support person accompany them to any formal meeting they are asked to attend as part of a conduct management process. The role of a support person is only to provide emotional support and they are not allowed to speak at all during the meeting with the employee.