Q&A with Industrial Relations & Legal Adviser Malvin Khaira

Q: I am an employer and I strongly believe that an employee is guilty of workplace misconduct. Can I dismiss him? 

A: All employees in Australia have the right to procedural fairness. If an employee’s involvement in misconduct is brought to your attention, you are required to conduct a full investigation into the misconduct and to afford him or her the opportunity to respond to allegations. This is procedural fairness.

Following the investigation, you will need to decide on a balance of probabilities, whether the alleged misconduct occurred. If you conclude that the misconduct did not occur, then disciplinary action will not be appropriate. However, if your conclusion is that it did occur, then disciplinary action may be appropriate. It will then be necessary for you to determine what type of disciplinary action is appropriate in the circumstances. 

Investigating misconduct

The investigation should be focused on whether the misconduct occurred, the extent of the employee’s involvement and whether any mitigating factors exist. Firstly, it is recommended that you develop a preliminary understanding of the misconduct by compiling relevant records, communications, or any other form of evidence that supports the notion that the employee did in fact commit the misconduct.  

Secondly, you would put this allegation to the employee and allow him to respond. This needs to be put in sufficiently detailed terms so that the employee can provide a full and proper explanation. It is preferable if this is done in writing. Procedural fairness requires that employees are made aware of what is being said against them so they can defend themselves adequately.

Thirdly, employees are to be given an opportunity to respond in writing. You should set a deadline for the written response. This is generally within a week depending on the complexity of the misconduct. Any verbal responses should also be noted in a file note of the meeting.

You may have as many meetings with the employee during the course of the investigation. The employee may raise additional information or offer alternative explanations which you must consider and further investigate. If there are witnesses to the misconduct, you will be required to interview these witnesses and gain their account of the situation. Please be minded that the employee is entitled to a support person during these meetings.

Deciding on the balance of probabilities whether misconduct occurred

After conducting a thorough investigation, it is necessary to decide on the balance of probabilities whether the employee is guilty of the misconduct. You need to take into account all relevant information that you have gathered including the employee’s response and any witness statements attained.

Deciding on an appropriate disciplinary response

If you have reached a conclusion that the alleged misconduct did occur, you would need to choose an appropriate disciplinary response such as but not limited to the following:

• A warning;
• Dismissal with notice;
• Summary dismissal.

Procedural fairness again requires that you afford the employee an opportunity to state their case as to why disciplinary action should not apply to them. For instance, if you are contemplating dismissal, then the employee needs to be able to provide reasons why they should not be dismissed. You must take those reasons into account when making your decision including mitigating factors such as:

• The length of service and prior employment record of the employee;
• The intention behind the misconduct;
• The employee’s contrition and remorse; and
• The circumstances surrounding the misconduct.

All disciplinary action must be proportionate to the misconduct otherwise you may face unfair dismissal or general protection claims. In the case of a less serious conduct, a verbal or written warning may be appropriate. For more serious misconduct, dismissal with or without notice may be warranted depending on the circumstances.

The above is a general guide to managing misconduct, however, you should always be cautious in dismissing employees as an unjustified dismissal may have significant consequences for you and your business.

If you are an MBA ACT member, we can provide you with advice in managing misconduct. Please contact our IR & Legal Adviser, Malvin Khaira at mkhaira@mba.org.au or at 6175 5900.