It’s a complex issue for employers, but with the right training and tools, workplace misconduct is easier to get to grips with.
Key terms
There are two levels of of misconduct: misconduct and serious misconduct. So what’s the difference?
Serious misconduct has the effect of “destroying or undermining” the relationship of trust and confidence between an employee and employer. Because of that, dismissal of the employee – or summary dismissal – may be an option.
Serious misconduct includes violence, bullying, theft and fraud, behavior that puts others at risk.
Things like inappropriate language, internet misuse, minor breaches of employment agreements (failure to wear regulation clothing for instance) would likely count as misconduct.
Simply put, for incidences of serious misconduct, dismissal is sometimes appropriate. For incidence of general misconduct, it isn’t.
For simple misconduct, offenders may be issued a warning. There is no set number of warnings an employee must receive before they are dismissed.
Can actions outside of work lead to dismissal?
Yes. There are several reasons why behaviour outside of the workplace may result in dismissal. If trust between the employer and employee is irrevocably damaged, or the employee likely to bring the employer into disrepute, dismissal may be appropriate.
Similarly, social media misuse can lead to disciplinary action. Employers should have social media policies in place, clearly setting out their expectations of behaviour both in and out of the workplace.
Complaints
Every complaint of misconduct must be investigated separately in a fair and reasonable manner, even if the nature of the offence is similar to ones that have gone before.
In this, technology has a big part to play. Digital enterprise case management systems such as EthicsPro® by Report It Now lets employers track and manage their ethical reporting responsibilities in a best-practice way.
Disclosure management software lets employees report misconduct and provides a pathway for management to work through internal and external investigation teams efficiently and transparently.
Note: Research shows that multiple reporting channels for misconduct encourage much greater engagement from employees.
Investigations
The investigation’s purpose is to establish the facts. It is the employer’s responsibility to fully investigate misconduct complaints and to properly raise concerns with the employee. To do this, employers must tell the employee exactly what the issue is, provide relevant supporting information. Employers must inform the employee if disciplinary action is a possibility.
Employers must also give the employee a reasonable opportunity to tell their side of the story, and to genuinely consider the employee’s explanations. Employees must have an opportunity to seek independent advice throughout the process.
Throughout the process, both employer and employee must act in ‘good faith’. That means refraining from misleading and deception, and keeping the lines of communication open. Good faith means employers provide all the necessary information to employees. Be sure to provide the employee opportunity for comment before job loss decisions are made.
External advice can help here. Report It Now supports companies and their employees throughout the complaint and investigation process.
Taking action
Employers are bound by the Employment Relations Act 2000 when taking action against an employee.
Employers must provide employees with a ‘preliminary decision’, including details of any proposed disciplinary action. From there, the employee may respond before a final decision is made. Consider the employee’s feedback before making a final decision. Employers should show how the employee’s comments have been taken into account by recording this in the decision.
A meeting can then be arranged with the employee to give your final decision. Include an explanation as to why that decision has been made. The employee may have their representative or support person present.