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employee misconduct

By Nikita Barsby, Special Counsel, Lauren Wright, Lawyer and Miette Xamon, Law Clerk

Business codes of conduct apply equally during work Christmas parties and social occasions

Misconduct in the workplace can take many forms and can range in severity from poor behaviour or attitude, to theft, assault or health and safety breaches. Dealing with misconduct and making decisions to take disciplinary action or terminate an employee’s employment can be difficult at the best of times, let alone in the busy lead-up to Christmas.

In this blog we outlined our top three tips for investigating and managing misconduct in the workplace, and to mitigate the risk of resulting legal claims.

1. Always afford procedural fairness

When investigating or responding to employee misconduct employers should keep procedural fairness front of mind and should ensure:

• a thorough investigation of alleged misconduct (including by engaging an external third party where appropriate);
• credible findings are reached based on solid, reliable evidence;
• the employee(s) alleged to have engaged in misconduct are provided with particularised allegations and a reasonable opportunity/timeframe to respond to those allegations;
• the employee(s) are offered the option of brining a support person to any meetings to discuss alleged misconduct; and
• a show cause letter is issued prior to any decision to dismiss an employee being made.

Even when an employee is found to have engaged in misconduct and there is arguably a valid reason for dismissal, employers must still ensure procedural fairness is afforded to avoid the risk of a successful unfair dismissal claim based on a denial of procedural fairness.

2. Determine whether the conduct is serious misconduct

If the employee’s misconduct is wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract, the conduct may be appropriately characterised as “serious misconduct”, warranting termination of employment without notice.

Serious misconduct can include theft, fraud, assault, intoxication at work, making negative or threatening comments on social media or other behaviour that negatively impacts the safety or welfare of other employees.

It can be difficult to determine whether misconduct is serious enough to constitute serious misconduct and it is prudent to seek legal advice prior to dismissing an employee on this basis.

3. Consider the consequences

Disciplinary action and or dismissal can have an adverse impact on staff morale and the welfare and financial position of the employee alleged to have engaged in misconduct.

A key consideration when assessing whether a dismissal is unfair is whether the dismissal was harsh, both in terms of:
• the resulting economic and personal consequences for the dismissed employee; and/or
• the outcome being disproportionate to the gravity of the misconduct.

While employee misconduct must always be managed swiftly, careful consideration should be given to the proposed course of disciplinary action.

Christmas party misconduct case study

In 2018, BHP was faced with managing the fallout from a fight which erupted at its Christmas party, during which a mine operator punched a supervisor in the face and spoke offensively to a female colleague about her breasts. A second mine operator also became involved and while attempting to break up the fight also allegedly punched the supervisor.

BHP dismissed both mine operators for serious misconduct following an investigation of the incident. Both mine operators commenced unfair dismissal claims.

The Fair Work Commission upheld the dismissal of the first mine operator and dismissed his application, but upheld the second mine operator’s claim and ordered reinstatement after finding that he did not punch the supervisor as alleged. Deputy President Asbury ordered BHP to confer with the second employee to determine an amount of compensation for lost remuneration, however ordered that the compensation be reduced by 75% to account for the mine operator’s misconduct in engaging in a verbal altercation with the supervisor, grabbing the supervisor by his shirt and his failure to mitigate his loss.

This case serves as a reminder to both employers and employees that the festive season is not an excuse to behave badly and that business codes of conduct apply equally during work Christmas parties and social occasions.

Drake & Bird v BHP Coal Pty Ltd [2019] FWC 7444 (30 October 2019)

MDC Legal are employment law specialists assisting employees, employers and industrial organisations – giving us a unique and comprehensive insight into employment law issues. Contact MDC Legal for tailored advice and assistance in managing employee misconduct during the festive season and into the new year.