Serious misconduct is defined as any action (or as the case may be, inaction) bringing the effect of destroying or undermining the relationship of trust and confidence between an employee and employer. Many employers deal with serious misconduct where an employee has acted in a highly dangerous manner or where there has been major breaches of the employment relationship. Once this trust and confidence has been broken, it means the employment relationship cannot continue.
After a thorough investigation and following a fair disciplinary process, the employer can decide if an employee has committed serious misconduct.
Identifying Serious Misconduct
The major question in defining serious misconduct is if the behaviour destroys or undermines the trust and confidence an employer has placed in the employee. Serious misconduct involves the employee acting deliberately or negligently in a way that has very negative implications on the workplace, their colleagues and other third parties.
Some examples of negative behaviour that can be classified as serious misconduct include:
- bullying
- dishonesty
- theft or fraud
- violent behaviour
- use of illegal drugs at work
- behaviour that endangers the health and safety of the employee and others
- harassment
Whether behaviour is actually serious misconduct will depend on the facts of each case including the employee’s explanation of the incident. This must be explored during a fair investigation and disciplinary process in order to establish if it is serious misconduct.
Actions to Take When Serious Misconduct Occurs in Your Workplace
It can be quite challenging to navigate the procedural requirements when misconduct occurs. The best place to start is with the Employment Relations Act. It gives the four key process areas that the Employment Court and Employment Relations Authority must consider when dealing with serious misconduct (section 103A (3) of the Act).
Sufficiently Investigate the Allegation
This will include interviewing witnesses to the serious misconduct, checking for any relevant documents and policies, reviewing any camera footage or video, gathering any documentary evidence and taking statements (which must be preferably signed). Proof on a balance of probabilities is required to substantiate that serious misconduct has occurred.
Raise the Concerns with the Employee Before Taking Action
The employer must duly notify the employee of the allegations or actual concerns of misconduct against him/her. The invitation to a disciplinary meeting should outline all the issues that are being investigated. It must be crafted in a way that allows the employee to seek relevant advice or representation, if need be, in order to respond to the allegations against them. In cases of serious misconduct, it is important to let the employee know they could face dismissal as a possible outcome of a disciplinary process.
Give the Employee a Reasonable Opportunity to Respond
The employee must be given a fair opportunity to answer or explain the allegations, before anything else is even considered. Ultimately however, the employer is entitled to proceed without the employee’s input if they do not respond.
Consider the Employee’s Explanation in Relation to the Allegations
The employee’s explanation must be considered with an open mind and in good faith.
Making a Fair Decision
Based on these four procedural steps, the Employment Relations Act requires that the employer acts in a way that is in line with what a fair and reasonable employer would do in all circumstances. The Employer must establish that the actions taken by the employee are serious misconduct and that in the circumstances the outcome is appropriate.
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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.