What to do when faced with having to manage workplace misconduct

5 min read  |   29 June, 2022   By Breathe New Zealand


Dealing with misconduct in the workplace is never easy (or enjoyable) but having a plan in place for managing it when it arises (and it’s likely to) will ease the process enormously. The first step in your plan should be about learning how to recognise misconduct and the two main categories it falls into. For example, look out for recurring behaviours like: 

  • Being late
  • Failing to meet KPIs or follow reasonable instructions
  • Using offensive or discriminatory language
  • Poor presentation like wearing inappropriate or unclean clothing or maintaining general hygiene
  • Misusing the internet and company platforms

The above behaviours fall under the first category of general misconduct. These offences are less serious and can be simpler to resolve. The following behaviors fall under the second category of serious or gross misconduct. Addressing gross misconduct can be especially tricky but allowing these types of behaviour to continue could put your other employees and your business at serious risk: 

  • Behaving violently to colleagues or customers
  • Harassing or bullying coworkers
  • Acting negligently 
  • Stealing or committing fraud
  • Endangering the health and safety of your employees and clients

What is the purpose of a workplace code of conduct?

A workplace code of conduct removes any confusion around how your business handles misconduct. It allows you to clearly outline what you expect from your employees in terms of standards of behaviour and the consequences for any breaches.

Other than simply wanting your employees to be safe, healthy and happy at work, there are three main reasons that make a workplace code of conduct so important:

  1. You have legal responsibilities
    As an employer, you are legally required to ensure the health and safety of your workers under The Health and Safety at Work Act 2015. You can ensure you meet your legal requirements by managing misconduct promptly and efficiently.

    A workplace code of conduct also protects your business legally in the event of an unfair dismissal claim.
  2. Your best staff could be on the line
    Other than exposing your business to legal risks, failing to deal with misconduct of certain employees can affect the morale and productivity of all staff and even go as far as to make your best employees leave.
  3. You can ensure fairness
    Having clear disciplinary procedures in place will help your employees stick to the rules. More importantly though, you will be able to make sure that you deal with all types of misconduct fairly and in the same way.

What steps should you take to manage misconduct?

The second part of your misconduct in the workplace plan should outline a straightforward, transparent and comprehensive set of steps that you and your managers will take if you witness or receive a report of misconduct.

When developing your misconduct management process, use these five helpful steps as a guide to help ensure you handle incidents systematically and fairly:

  • Arrange a meeting
    Start simple and give your employee plenty of notice for attending a meeting to discuss their behaviour. In your letter or email to the employee, do you best to clearly outline:
    • The alleged misconduct 
    • What you hope to get out of the meeting
    • The potential consequences
    • That they can bring a support person with them to the meeting

This will help your employee prepare a clearer and more concise response.

  • Present the facts and evidence you’ve gathered
    Gather as many facts and pieces of evidence from everyone involved in the misconduct allegation. Evidence can be in the form of:
    • Personal testimonies
    • Video footage
    • Photos
    • Relevant emails, text messages and other forms of communication
    • Financial records

During the meeting, clearly present everything so everyone involved is on the same page.

  • Give your employee the chance to tell their story
    Before you make a decision on how to deal with the misconduct, let your employee respond to the allegations against them. If they prefer not to respond immediately, you can offer them the choice to provide you with a written statement shortly following the meeting.
  • Clearly communicate your choice of disciplinary action
    Depending on whether the misconduct in question falls under general or gross misconduct, you need to decide how to address the behaviour.

    If it falls under general misconduct, you can choose to give your employee a warning and the chance to improve their conduct with further training, guidance or mentoring. This can help to reduce the chance of an employee repeating the misconduct in the future.

    If the behaviour in question is gross misconduct, you may have the grounds to fire the offending employee immediately. However, before you decide to end someone’s employment make sure you are being substantively and procedurally fair as well as not firing someone for a reason that is discriminatory or in breach of an employee’s workplace rights. This is important for avoiding a disgruntled employee from making an unfair dismissal claim with the Fair Work Commission.

    For personalised advice about firing staff, it’s best to consult with an employer association or lawyer.
  • Continue monitoring
    If you decide to give your employee a warning and/or a path for improving their conduct, schedule a follow-up meeting to monitor their performance for the weeks or months to come.

The last and most important part of your misconduct plan is communicating the process to all employees and making sure everyone knows how to find the information whenever they need it. After all, the best way to manage misconduct is to ensure employees are crystal clear on how to avoid it in the first place.


Author: Breathe New Zealand

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