Serious misconduct is generally conduct so serious that an employer cannot have the employee in the workplace any longer. Typical examples of serious misconduct type behaviour include theft, fraud, violence, bullying, discrimination, gross negligence and serious breaches of health and safety procedures.
It is important that Employers can correctly classify the alleged conduct as serious misconduct because the process for addressing serious misconduct with an employee is different to normal performance management or misconduct management procedures. Typically, allegations of serious misconduct will need to be the subject of a comprehensive investigation by an Employer and sometimes it may be necessary to engage an external investigator.
We strongly recommend that Employers seek legal advice prior to terminating an employee’s employment for serious misconduct.
Common mistakes we see with termination for serious misconduct
- Employers consider misconduct to be serious misconduct when it does not meet the standard required
- Not conducting a full and thorough investigation into the allegations
- Not engaging an external investigator when appropriate (e.g. where there is conflict of interest or a difficulty being impartial)
- Not providing sufficient detail of the allegations to the employee so they can respond
- Not providing the employee with sufficient opportunity to respond to the allegations
- Not genuinely considering the employee’s response to the allegations
- Not allowing the employee to have a support person at a meeting involving dismissal when one is requested
Key risks of getting it wrong
Improperly terminating an employee’s employment for serious misconduct or terminating their employment without following proper process relevant to serious misconduct, will carry the risk of the employee commencing an unfair dismissal claim or general protection claim, and being successful with that claim.
How can we help you?
If you consider that an employee has engaged in serious misconduct, we strongly recommend that you immediately contact one of our experienced Employment Lawyers to discuss the process you should follow to minimise your risks.
It is crucial that you properly investigate allegations of serious misconduct and we can assist you to understand the appropriate procedure.
Investigations can be complex and because of this, we frequently conduct investigations for our clients. This not only provides impartiality to the investigation process, but we will provide you with a detailed report containing findings and recommendations on any disciplinary action that may be necessary.
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