Managing repeated misconduct in the workplace is a common source of frustration for employers in New Zealand. Some employers struggle with following the correct process and procedures when managing repeated misconduct, as it can be time-consuming and impact their normal business activities. However, it is important to follow these procedures in order to avoid an unjustified disadvantage or dismissal claim.
The Meaning of Repeated Misconduct
Repeated misconduct is a series of repeat acts of misconduct which go against the expectations of professional behaviour and the rules, policies and procedures of an Employer. This can happen in many aspects of the workplace, such as showing up to work late or failing to obey reasonable instructions.
Generally speaking, if an employee has been issued with several warnings about the same behaviour and fails to rectify this behaviour, this would be considered repeated misconduct.
An investigation into each claim of misconduct as it occurs will ensure that the employee has been given time to rectify their behaviour and clearly sets out that the conduct complained of is not permitted in the workplace.
When managing an employee who repeatedly engages in misconduct, it is especially important to follow a fair disciplinary process and keep written records of the process and the outcome.
How to Manage Repeated Misconduct
No matter how serious the misconduct is, employers should respond in a fair and reasonable manner. When managing an employee engaging in repeated misconduct consequences in the workplace of repeated misconduct:
- Loss of productivity
- Creating a toxic work environment
- Putting the health and safety of workers at risk
Early intervention is the most effective way to manage repeated misconduct. The sooner a problem is acknowledged, the sooner both parties can work together to solve it.
Where allegations of misconduct come to the attention of the employer, they should investigate the allegation, collect all relevant evidence and undertake a disciplinary process. Before deciding on an outcome, such as a written warning, and employer should allow the employee to respond to the allegations against them and genuinely consider the employee’s feedback.
If appropriate, the employer can then issue a written warning which:
- Clearly describes the reason(s) for the warning
- Contains all relevant information about the incident
- Explains how the employee should improve themselves
This warning should give the employee a chance to reflect on the situation and have enough time to rectify the issue.
What if the Problem Persists?
While it may be tempting to immediately dismiss and employee engaging in repeated misconduct, employers should still follow the correct process and procedures. There is no definitive number of times an employee needs to repeat misconduct (and be issued with written warnings) in order to justify dismissal.
Whether or not an employee can be dismissed on the basis of repeated misconduct depends on:
- What is reasonable and justifiable in the circumstances of the matter
- How many times the same misconduct has occurred and how many warnings have been issued to the employee for this misconduct
- The nature and the seriousness of the misconduct
- The Impact on the employer and other employees
Only after multiple instances of repeated misconduct, and multiple warnings issued for the same (or similar) misconduct with no improvement displayed by the employee, can a justified dismissal take place.
There is no set number of warnings, but the employer’s response must be fair and reasonable. To ensure the employee does not have grounds for unjustified dismissal, the employer must prove that a fair investigative process was undertaken on each occasion.
Serious Misconduct
Serious misconduct is defined as any action (or inaction) bringing the effect of destroying or undermining the relationship of trust and confidence between an employee and employer.
Many employers will confront serious misconduct where an employee has acted in a highly dangerous manner or where there has been a major breach of the employment relationship. Once this trust and confidence has been broken, it means the employment relationship cannot continue
If an employee is found to have committed an act of serious misconduct, the outcome of a fair disciplinary process may be a first and final written warning or summary dismissal.
For advice on repeated misconduct and what it means for your workplace, contact Peninsula on 0800215036.
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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