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Misconduct

HR Policies

19 May 2025 (Last updated 3 Dec 2025)

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Misconduct relates to the conduct of the employee where the employee’s actions (or in some cases, inaction) breaches a rule, procedure or policy of the business or a duty of care or obligation inherent in the employment relationship. Misconduct may result in disciplinary action.

The type of disciplinary action will depend on the severity of the misconduct and the employee’s disciplinary record, as well as several other factors.

Misconduct vs serious misconduct

Distinguishing between whether an employee’s behaviour or action is misconduct or serious misconduct is often where employers make mistakes in managing the behaviour.

A simple way to distinguish between the two is that serious misconduct will apply if the act may have the effect of destroying or undermining the relationship of trust between employee and employer. Serious misconduct, pending a formal and fair investigation, may lead to terminating an employee whereas a single act of misconduct will not result in dismissal but rather a written warning.

Identification

Acknowledging the difference between misconduct and serious misconduct is important. However, it is equally important to know what misconduct on its own can include. Some examples can take the form of inappropriate language, misusing the internet, or minor breaches of the employment agreement such as inappropriate clothing, or lateness.

Repeated misconduct

Should there be accusations or a view that misconduct has occurred, an investigation is the best way forward. Even if there is an allegation of the same kind of misconduct, it is imperative that a new investigation is undertaken for each instance. An investigation into each claim of misconduct will ensure that the employee has been given time to rectify their conduct and understands whatever is taking place is not permitted in the workplace.

A documented series of investigations into repeated misconduct, will enable employers to use this to dismiss the employee. This scenario is not ideal, but if the employee has proven to continue the same type of misconduct over and over, it may be for the best that they are terminated from the workplace.

For a successful termination, and to ensure the employee does not have grounds for unjustified dismissal, a fair investigative process must be undertaken. Only after multiple instances of repeated misconduct, with no improvement displayed by the employee, can dismissal take place. There is no set number of warnings, but the employer’s response must be fair and reasonable.

Does misconduct apply if it is outside of work?

Misconduct outside of work can result in disciplinary action for many reasons, such as a damage to the relationship of trust between the employer and employee, or the action bringing the employer into disrepute.

Outside of work

Bringing the employer into disrepute is one of the more obvious ways in which misconduct outside of work may result in disciplinary action, such as dismissal. This type of misconduct does not need to be proven to the point where an actual negative impact has hit the business’s reputation, but only the potential for reputational damage.

On social media

The activity of employees on social media can be cause for disciplinary action if there is a connection between the employee’s post and the employer. In this case, to minimise the potential for any issues as a result of social media posting by employees, a social media policy can outline expectations and what type of behaviour is and is not accepted, regardless of whether posting is done during work hours or not.

A well written and implemented social media policy should clearly set out as unacceptable, any posts criticising the employer, colleagues, customers and suppliers as well as any instances of bullying. Special emphasis should be placed on the need for commercially sensitive and other confidential information to be kept off social media. An added layer should document the process if an employee posts and proves they are not doing what they said they would be doing, for example if an employee is on sick leave and then checks in at a sports venue.

Peninsula helps thousands of businesses across New Zealand manage their employment relations and work health and safety.

For advice and support please contact our advice line on 0800 215 031.

This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.

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Email usage policy

While email has been around for years, it is still a mode of communication that involves a lot of overseeing and supervision. It’s tricky nature and lack of tone can make it an easy way for things to get lost in translation. It is hard to imagine running a business without email because it is such a convenient, flexible and immediate tool. But the fact it is so easy to send an email can result in misuse or abuse. A carelessly phrased email forwarded to lots of recipients can quickly damage your reputation or break confidentiality, even when unintended. In this best practice guide for employers, we explain email usage within the workplace and recommend a standard email usage policy that you can implement immediately. Please note that the information is general and does not constitute advice. If you need help with policies, consult an employment relations professional. Email usage in the workplace There are many risks involved with email usage. Having a company wide policy for email usage and communication can protect you and your employees from potential risks. Your employees may send emails without considering the risks of confidentiality or even security. Without a clear written and established company policy, you cannot manage security and safeguard your business. As an employer, you are liable for the acts and omissions of your employees. Drafting an email usage policy When you draft your email policy, it should keep certain factors in mind: Decide the extent to which employees can use the Internet and email for personal purposes. You should set out the consequences for not following the policy, including disciplinary action and summary dismissal. The use of email and internet should be consistent with employee responsibilities and should comply with all other rules and procedures. Avoid permitting activities which might be illegal, offensive, or likely to have negative repercussions. Depending on the business you are in, a higher level of security could be useful on the email. The email usage policy should also mention styles of communication for outside work hours or outside working days. General email usage policy requirements The policy should be made available to all staff and stored in the company internal communication network, where it can be accessed anytime. Be very clear and explicit as to what is considered forbidden. Clearly set out what information gets recorded, logged, and who has access to the information. Mention why the improper use of email can be risky and that it may pose a threat to system security and the legal liability of the organisation. Outline in plain language how the company will monitor staff compliance with company rules on acceptable use of email and browsing. The policy should be regularly reviewed in accordance with the development of the internet and information technology. Monitoring email usage There are currently no laws prescribing the prohibition of monitoring an employee’s emails or Internet usage. However, there is controversy about the grey area of ‘telecommunications’ and if it includes emails and internet. While many companies monitor email usage, the key is it to do with caution and respect: Be open about monitoring the communication channels. Your employees have a right to know that their email and internet use is monitoring. Limit personal use and set restrictions clearly. Do not intrude on the privacy of the employee and provide a mechanism for employees to delete email from the system. Any personal information that is found that concerns employees must be used fairly. Establish a business purpose for monitoring (working time is used productively or checking if they have logged in). Do not monitor websites, viewed content unless the business purpose cannot be achieved by recording time spent on the Internet. Monitoring should be limited to an automated process. You should not monitor the content of the emails unless the traffic record alone is not sufficient. If you are using the results of the monitoring, give the employee an opportunity to explain the results. Disciplinary action for improper email usage An employer may dismiss an employee for improper email usage or misuse of workplace internet resources provided the employer: Clearly demonstrates the use was an unauthorised use as defined by the email usage policy or electronic communications policy. Investigates the employee in accordance with any workplace disciplinary policy and workplace relations law. Gives the employee an opportunity to respond to the allegations. Implement effective policies with Peninsula The changing world of telecommunications means it can be tricky to ensure the safety of your employees and your business. Having clear and established policies can make a world of difference for your business. We understand small businesses may not always have the resources to create and implement effective policies for employment relations and workplace health and safety. At Peninsula, our goal is to provide tailored services and support that meet your needs as a business owner. Peninsula advisers can help you build and establish clear and sturdy email usage policies. For peace of mind, call our  advice line. This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.

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