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Misconduct and discipline

Being disciplined for misconduct is quite a stressful experience. However, there are a number of due process rights under the Fair Work Act 2009, so it is worth checking that you are being treated fairly. 

What is misconduct?

Misconduct allegations arise when an employee is alleged to have breached a generally accepted or defined standard of behaviour. Standards of behaviour are often defined in:

  • company policy
  • employment contract
  • code of conduct
  • OH&S and other legislation.

 

Conduct issues can be distinguished from performance issues in that they do not relate to how well you are performing your role. 

Is it compulsory to investigate misconduct?

If an employer receives a misconduct complaint, they are not necessarily required to investigate. The employer may determine that the conduct is not serious enough, or not a breach of any defined standard of behaviour. 

 

If the conduct is serious or poses a risk to OH&S it is likely to be investigated. 

What is serious misconduct?

Serious misconduct is conduct that is inconsistent with the continuation of the employment contract. 

An employment contract may attempt to define serious misconduct. It is also defined in the Fair Work Regulations 2009 to be:

(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;

 (b) conduct that causes serious and imminent risk to:

 (i) the health or safety of a person; or

 (ii) the reputation, viability or profitability of the employer’s business;

 (c) engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;

 (d) being intoxicated at work;

 (e) refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

 

Due process

During this process, it is important to remember that you may be entitled to procedural fairness principles found in the unfair dismissal provisions of the FW Act, namely: 

  • there being a valid reason for dismissal
  • having prior notice of the reason for dismissal
  • having the opportunity to respond to the reason for dismissal. 

How will the misconduct be investigated?

The employer should have a policy relating to discipline that outlines the process they will follow. An enterprise agreement may also outline the process to be followed. 

Usually, the employer will write an allegation letter to the employee outlining each aspect of the alleged misconduct. The employer may also choose to have a meeting to discuss the misconduct, and they may also appoint an external investigator. 

Responding to an allegation letter

 If you have received an allegation letter, you should: 

  • address each and every allegation in an honest and straightforward way
  • clearly state whether you admit or deny each allegation. If admitting an allegation, you should provide further explanation or context for the conduct. If denying the allegation, consider what proof the employer may have. 
  • If an allegation is not clear, or you do not understand it, say so. 
  • Raise any other matters that is relevant to the investigation, including if there have been procedural problems with the investigation.  

Do I have to respond to an allegation letter?

No, but it is strongly recommended. If you do not respond the employer will have to decide whether the conduct occurred in the absence of your response. The employer is seeking to determine whether it is more likely than not that the allegations occurred. 

They may also say that you were directed to respond, and in failing to do so you failed to follow a reasonable direction.

Should I bring a support person?

Yes, it is recommended to request to bring a support person (for example, a friend, colleague or union representative). 

Under the FW Act, any unreasonable refusal to bring a support person is a relevant consideration in relation to whether a dismissal is harsh, unjust or unreasonable. 

What are the potential outcomes?

The outcomes of a disciplinary process should be provided in company policy or enterprise agreement. 

If the conduct is not substantiated, there is likely to be no recorded outcome. 

If the conduct is substantiated, you may: 

  • receive a counselling note
  • receive a warning
  • be dismissed
  • receive some other sanction provided for. 

 

What can I do about an unfair investigation?

You may have legitimate grounds to object to an investigation if there was no basis to initiate the process, or if the employer has failed to comply with its own disciplinary procedures.

You should put your objections in writing and send them to your employer. 

If you receive a warning that you think is unfair, you may respond to this warning in writing and ask that your response to be kept on your personnel file.  

If you are terminated from employment, you may have appeal options (please refer to Henry Bournes’ unfair dismissal and general protections information). 

What can we do to help?

We can help ensure that you are treated fairly throughout the process and that your employer is following the correct procedure and meeting their legal obligations.  

 We can assist with:  

  • Advice on discipline procedures 
  • Responding to allegations 
  • Negotiating directly with the employer  
  • Initiating a grievance or dispute if the employer has not followed the correct procedures.

This information only relates to employees under the Fair Work Act (Cth) 2009). It is information only and is not legal advice. Allegations of misconduct can be difficult to manage on your own. If you require advice or assistance in relation to misconduct please click ‘book now’ for a confidential consultation. Liability limited by a scheme approved under Professional Standards Legislation.