By Mark Cox, Director & Miette Xamon, Law Clerk
Misconduct in the workplace can be a tricky matter for employers to deal with, which is often made more difficult due to Christmas shut downs and staff annual leave. There are 5 steps that an employer should consider when investigating misconduct and deciding to take disciplinary action to mitigate the risk that an employee (either the person alleged to have engaged in misconduct, or the person on the receiving end of that conduct) will mount legal claims.
- Get Your Facts Straight via a Fair Process
Conduct a careful investigation with procedural fairness to reach credible findings. Employers must have a valid reason for dismissal. Not having appropriate proof of the alleged misconduct can render a dismissal unfair, as can a failure to afford procedural fairness to the employee before dismissal. Procedural fairness means giving the employee an opportunity to respond within a reasonable time frame.  Rushing through disciplinary proceedings because of the Christmas period compromises this procedural fairness, due process must be taken even if it means waiting until after the break. Particular care should be taken when the alleged misconduct is the commission of a crime, as this will require a higher level of scrutiny and may in fact require referral to the police.
- Provide Warnings
When considering whether a dismissal is harsh or not the Fair Work Commission must consider whether the person had been warned about their unsatisfactory performance before the dismissal. Warnings can be more relevant to issues of unsatisfactory performance, rather than instances of misconduct, but it is best practice to give employees warnings in writing before ending their employment, except in clear cases of serious misconduct, a single incident of which may justify summary dismissal.
- Is it Serious Misconduct?
In circumstances of ‘serious misconduct’ an employee can be terminated without warning or notice. Serious misconduct is wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, such as theft, fraud, assault, intoxication at work, or behaviour that negatively effects the safety and welfare of other employees. Even conduct such as making negative or threatening comments online can constitute serious misconduct. If serious misconduct occurs it is best to deal with it as soon as possible, rather than leaving it to be dealt with after the Christmas break. This is particularly important if misconduct involves another employee, they will want it dealt with promptly rather than being left to agonise over the misconduct while away from work.
The Festive Season can be a particularly difficult time to have to deal with misconduct. Staff often take leave over this period, so appropriate HR or managerial staff may not be around to properly deal with misconduct. Office shut-downs pose the same barrier to procedural fairness. An employee must be provided with adequate, cause, notice, and opportunity to respond. This means disciplinary proceedings can’t be rushed to fit a tight schedule. In the rush to get work done, HR issues may be pushed aside entirely. Try to keep on top of everything and ensure procedural fairness while managing misconduct over the festive period.
- Consider the Optics
There are some non-financial considerations when dealing with misconduct so close to Christmas they may weigh in favour of taking prompt action or leaving it to the New Year. Consider the effect on staff morale. Consider how it will look on the front page of the newspaper. The effect on the individual employee may also warrant consideration, particularly if they are financially over-extending themselves before the holidays. If you feel the process is being rushed and improperly conducted, it may be best to wait until the New Year when proper time and resources can be utilised. However, for instances of serious misconduct or harm to another employee, discipline should be dealt with immediately.
This marks Day 11 of MDC Legal’s 12 Days of Christmas blog series. For advice on dealing with misconduct and other issues that may arise during the festive season, contact MDC Legal on 9288 4000.
 Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport, Print S5897, (2000) 98 IR 137.
 Fair Work Act 2009 (Cth) s 387(e).
 Annetta v Ansett Australia Ltd, Print S6824.
 Fair Work Regulations 2009 – Reg 1.07
 O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys  FWA 5311.