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Managing misconduct

Some employees are great at their jobs, but sometimes their behaviour may be inappropriate. It can be hard to know where to draw the line or how to deal with it. Following the right process can help you deal with misconduct before it becomes a bigger issue, and gives you the evidence you need if the issue continues.

What is misconduct?

All sorts of things can be considered misconduct, this may include:

  • repeated lateness
  • behaving unprofessionally
  • breaching confidentiality
  • breaching clauses in the employment agreement, eg not wearing the company uniform
  • unsafe behaviour.

What you consider to be misconduct should be set out in your employment agreement and policies, so that you and your employees are on the same page about what is not acceptable behaviour.

Some minor misconduct can be dealt with by having an informal conversation with the employee. If the behaviour continues after an initial discussion, or if it's something more serious, you should begin a formal misconduct process.

Follow this process if an employee has behaved inappropriately — if the issue is how they’re performing their job, you should track their performance.

Step 1. An informal conversation or notification

If it's minor, you can just have an informal conversation — but make sure you document it and let them know that if it happens again, you'll be starting a formal misconduct process.

If it's more serious, let them know that you'll be investigating the issue, and will meet with them again after investigating.

Step 2. Investigate the allegation

If necessary, depending on the nature of the misconduct, get written statements from witnesses, with details like:

  • the date of the incident
  • what time it happened
  • a description of the alleged behaviour.

Tell the witnesses that you'll be disclosing their allegation to the employee you're investigating. If you witnessed it yourself, document your own statement of the event, and get statements from other witnesses if possible.

Step 3. Check documentation

Check relevant company policies and your employee's employment agreement for clauses outlining acceptable behaviour. This will let you confirm, if the allegations are proven, that they breached your rules.

Step 4. Provide written findings

Set out your evidence in a letter. The letter should include:

  • details of the allegations (including any witness statements)
  • excerpts of the relevant clauses in the employment agreement or company policies that may have been breached if the allegations are made out
  • a date on which you want to meet with the employee to discuss the allegations (let them know they can bring a support person or representation
  • the consequences of what may happen if the allegations are upheld (eg, a written warning).

Step 5. Meet with the employee

Arrange a meeting with the employee — you can both have a support person there, if you want to.

Set out the reason why you called the meeting. Explain the allegations against the employee and the possible consequences if they are made out.

Give your employee the chance to tell their side of the story. At the end of the meeting, let them know how long you'll take to consider the situation (normally a day or two), and when you'll inform them of the outcome.

Step 6. Make your decision

Consider all the evidence and decide what the outcome will be. You can:

  • dismiss the allegations
  • give an informal warning and tell them it won't be taken any further
  • give a formal warning
  • if the conduct is serious enough, give a final written warning.

When deciding how to deal with the behaviour, consider what an objective reasonable employer would do in your situation.

Detail your findings in a letter to your employee, noting what clauses or policies have been breached. State what may happen if the behaviour is repeated.

If the misconduct is repeated

If you witness or receive allegations of further misconduct by that employee, you'll need to repeat the process above — whether it's for the same behaviour, or something different.

If the misconduct is proved again, depending on the type of misconduct you can:

  • action the outcome stated in your last letter of findings 
  • issue another formal warning (there's no limit to how many warnings you can give — it depends on the type of misconduct)
  • issue a final written warning, stating that if the behavior is to happen again, they may be dismissed
  • if the misconduct is serious enough or has repeated often, you may want to consider dismissing your employee.
Common mistakes

To reduce the risk of a personal grievance, don’t fall into these common traps:

  • not documenting minor misconduct — a single instance of misbehaviour can seem harmless, but if it's happening regularly, it becomes an issue. To take action, you need to have evidence that it's an ongoing problem
  • not talking to your employee if you have concerns about their behaviour — they might not realise they're doing something wrong
  • taking action without following the process — you need evidence that you've investigated fully in case of a personal grievance
  • forgetting to allow the employee to have a support person or representative during the process
  • forgetting to document outcomes in writing.
Use  the task list on this page to help you avoid these common pitfalls.

Use the task list on this page to help you avoid these common pitfalls.

These will also provide a record of what's happened.

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