Serious Misconduct – Managing It Well
“You’re fired!” It’s the classic catchphrase of Donald Trump that turned abrupt dismissals into popular reality TV, but can an employer in 2018 really say this?
Every now and then, we are called in to help clients manage serious misconduct matters. They’re never pleasant to work through and getting the process right is crucial.
Many employers think when an employment agreement states instant or summary dismissal it gives the employer the right to sack someone on the spot. Not so – every employee deserves and must be given the opportunity to put up a defence. It’s that wonderful, essential principle of justice at work, of being innocent until proven guilty.
Summary dismissal can be used once you have followed a fair, reasonable and due process to investigate and determine that the employee was party to serious misconduct.
What is serious misconduct? The answer will be different for every business however there are some common markers – typically misappropriation (property, money, etc.), wilful damage, violence in the workplace and being under the influence of drugs and/or alcohol. There are a host of behaviours which could be considered serious misconduct so it’s worth taking the time to consider what matters to your business and developing some standards around these.
Managing an incident of serious misconduct will often involve suspension. It’s important you discuss this with the employee as a proposal to suspend and get the employee’s input before you make the decision to suspend. Suspension is usually on full pay and, no matter what you do, summarise your discussion and confirm the suspension in writing.
Investigating the facts and piecing the story together is critical. Your investigation will usually include a conversation with the employee under investigation, and seeking their commentary. At this stage, you’re not in a disciplinary meeting – you are investigating. You might need to interview others and you might need to do a walk-through of how the event happened. Once you have completed your investigation, and you consider you have enough information to warrant an allegation of serious misconduct, you can proceed to disciplinary.
Ahead of the disciplinary meeting, the employee should be made aware of the allegations against them and advised that you are considering the allegations as serious misconduct. They should also be advised that they can bring a support person to the meeting. Document this ahead of time in writing for the employee. Once you are in the meeting, you need to take the time to ask questions and let the employee respond to the questions and allegations. Probe, probe, probe.
Running a good meeting is essential. Before you make a decision and advise the outcome, you should adjourn – whether that’s for the same day or a different day will depend on the nature of the matter and what else you might need to look into.
Once you’ve made a decision, and if that decision is to uphold the allegations of serious misconduct, then summary dismissal occurs. It effectively means employment ends that day and there is no notice period. There are other possible outcomes – undertaking training, dismissing the allegations, a first & final warning, are all good examples.
The process outlined in this article is an overview only and not intended to be all encompassing. Every serious misconduct matter is different. If you need to manage such a process, we recommend you seek advice from an HR professional or employment lawyer first. Of course we’d love to be that firm you come to, so please give us a call if you need any advice or if you just have a general question.