What to do when employee misconduct is alleged – is disciplinary action required?

Employment law specialist, Daniel Cowan Daniel Cowan, Partner

What needs to be thought about when an employer suspects misdconduct or serious misconduct?

Daniel: It’s very important that any action that is taken is fair on two counts – both substantively and procedurally.

That means both the process must be fair and reasonable and the way the process is carried out must also be fair and reasonable.

When employee misconduct is alleged, what steps should be taken to ensure the process is fair?

Daniel: You should first check your ermployment agreement to ensure you know the process that has been set down to work through with alleged misconduct.  If a process has been prescribed but then is not followed, this can give grounds for an employee  to lodge a personal grievance.

Next the seriousness of the conduct should be considered and whether the employee’s presence in the workplace might affect an investigation. If so and the employment contract allows it, the suspension of the employee may be warranted.

What requirements must be met when investigating the misconduct?

Daniel: A full investigation of the manner and the nature of the complaint needs then to be investigated promptly and confidentially. The employer needs to interview all witnesses and pull together all relevant information. 

If the disciplinary process is necessary then a meeting should be set up with the employee to discuss the matter.

What should take place at the disciplinary meeting?

Daniel: The employee should be given at least 24 hours advance notice of the meeting and informed in writing of the following:-

    1. The nature of the complaint
    2. The possible outcome of the meeting
    3. That the employee is entitled to bring a representative to the meeting.

This is the opportunity for the employer to raise their concerns and detail the complaint to the employee providing evidence obtained through their investigation.  The employee must be given an opportunity to respond to the allegations.

And after the meeting?

Daniel: It’s is then time to consider and decide whether the alleged conduct is substantiated. All evidence should be considered and the employee’s responses in the disciplinary meeting should  also be taken into account. From this, a decision should be made on the balance of probabilities whether the alleged misconduct occurred and an appropriate course of action should be decided on.

Whether any action is taken at all, and the extent of this action will depend on the conduct and also on the terms of the Employment Agreement.

The information contained in this paper is necessarily of a generalised nature and specific advice should be sought in relation to any particular situation. Further information and assistance in relation to this article can be gained by contacting senior commercial lawyer Daniel Cowan.