Workplace Investigations for Serious Misconduct
By: Jason Papoutsis
Workplace Investigations Generally
A workplace investigation for misconduct refers to a process where an employer or an appointed third party investigates allegations of improper, unethical, or illegal behaviour by an employee in the workplace.
The purpose of the investigation is to determine whether the misconduct took place, the extent of the misconduct, and who was responsible. This information is then used to make informed decisions about appropriate disciplinary action or other remedial measures.
The alleged misconduct being investigated can range from harassment, discrimination, theft, fraud, and other forms of unethical behaviour.
Misconduct can also involve allegations of failing to abide by the employer’s internal policies and procedures relating to a wide range of other conduct or omissions.
What is Misconduct?
Misconduct in the workplace refers to any behaviour that violates the rules and standards of conduct established by an employer or is inconsistent with the behaviour expected of an employee in their job.
Some common examples of misconduct include:
- Theft or fraud: Stealing from the company or committing fraud by misusing company funds or assets.
- Harassment: Engaging in behaviour that is intimidating, threatening, or offensive to another person, such as sexual harassment, bullying, or discrimination.
- Substance abuse: Using illegal drugs or drinking alcohol during working hours or being under the influence of drugs or alcohol while at work.
- Insubordination: Disobeying a reasonable and lawful instruction from a supervisor or manager.
- Dishonesty: Providing false information to an employer or lying about work-related matters.
- Negligence: Failing to perform one’s duties to a reasonable standard, resulting in harm to the employer or others.
- Breaching confidentiality: Disclosing confidential information without authorisation.
It’s important to note that the specific definition of misconduct can vary depending on the employer’s policies.
Anyone who is facing allegations of misconduct should seek legal advice on whether the conduct can reasonably amount to misconduct, and if so, what range of disciplinary action can be taken based on the severity of the misconduct.
Can Performance Issues Amount to Misconduct?
It is important to distinguish between performance issues and misconduct, as performance issues are generally addressed through performance management processes, while misconduct is addressed through disciplinary processes.
The specific approach taken will depend on the company’s policies and procedures, as well as the specific circumstances of the case.
That being said, performance issues at work can sometimes amount to misconduct, depending on the specific circumstances and the company’s policies and procedures.
For example, if an employee consistently fails to meet performance expectations or consistently fails to complete work to a required standard, this may be considered misconduct. This can be especially true if the employee has received prior warnings about their performance and has failed to take corrective action.
What is “Serious” Misconduct?
In general, serious misconduct refers to behaviour that is considered to be a major breach of an employee’s obligations and responsibilities, while misconduct refers to behaviour that is considered to be a lesser breach.
The exact definition of serious misconduct and misconduct can vary depending on the specific circumstances and the company’s policies and procedures.
The Investigative Process
After the employer receives a complaint, an initial assessment will be undertaken to determine whether the complaint is credible and warrants further investigation. This may involve preliminary interviews with witnesses and gathering available evidence.
If the allegations are deemed to be credible enough to warrant further investigation, the employer will then plan the investigation and decide whether the employer will investigate the allegations internally, or whether an external third-party investigator will be appointed.
The investigators will then determine the scope of the investigation, and gather evidence by interviewing witnesses and collecting relevant information, after which the investigators will analyse the evidence obtained to determine whether misconduct has occurred, who is responsible, and the extent of the misconduct.
The investigators will also prepare a written report summarising the findings and conclusion of the investigation, and make recommendations on appropriate action. The employer will then decide which recommendations to implement, which may include disciplinary action, training, or changes to policies and procedures.
What is the Range of Disciplinary Outcomes for Serious Misconduct?
The range of disciplinary action that can be taken for serious misconduct in the workplace can vary depending on the specific circumstances and the company’s policies and procedures. However, some common forms of disciplinary are set out below, from least serious to most serious:
- Verbal warning: A verbal warning may be given for less serious instances of misconduct. This is a verbal discussion between the employee and their manager, outlining the specific behaviour that is unacceptable and the consequences of repeating the behaviour.
- Written warning: A written warning is a formal document that outlines the specific behaviour that is unacceptable and the consequences of repeating the behaviour. Written warnings are typically given for more serious instances of misconduct.
- Suspension: Suspension is a temporary form of disciplinary action that involves the employee being temporarily removed from the workplace. This may be without pay or with pay, depending on the circumstances.
- Demotion: Demotion involves an employee being reassigned to a lower position within the company, with a corresponding reduction in pay and responsibilities.
- Termination of employment: Termination of employment is the most severe form of disciplinary action, and involves the employee being terminated from their position. This may be with or without notice, depending on the circumstances.
The importance of getting Legal Representation in Workplace Investigations
Since a common outcome of a workplace investigation is the termination of a person’s employment, individuals who are subject to such investigations should seek legal advice immediately.
An experienced employment lawyer can assist you in several ways, including but not limited to:
Advise on your rights: An employment lawyer can advise you on your rights and obligations as an employee, and help you understand the investigation process and the potential consequences of the allegations against you.
- Representation: An employment lawyer can represent you in the investigation process, and can help you navigate the complex legal landscape involved in workplace investigations, especially when the allegations are serious.
- Referral to Criminal Lawyer (if necessary): Where allegations of criminality exist, additional advice should be sought from a lawyer experienced in Criminal Law, and good employment lawyers will involve a criminal lawyer so that these criminal law risks can be appropriately managed to ensure the employment response does not adversely affect any potential criminal prosecution.
- Prepare a response: An employment lawyer can help you prepare a response to the allegations against you, and can assist you in gathering and presenting evidence in your defense.
- Negotiate a resolution: An employment lawyer can assist in negotiating a resolution to the allegations against you, including the terms of any disciplinary action or termination of employment.
- Advocate for your interests: An employment lawyer can advocate for your interests and help ensure that your rights are protected throughout the investigation process.
Why Potts Lawyers?
There are several strategies that a workplace investigation lawyer can use to assist an employee facing serious allegations of misconduct in a workplace investigation.
Potts Lawyers are experienced in employing those strategies and providing clients with valuable assistance throughout the investigation process, including before, during, and after the investigation.
A comprehensive examination of the evidence, timely identification of legal issues, and provision of advice will need to occur early in the matter so that our clients are well informed of the risks and the best strategies available to them for achieving a successful outcome.
Each person’s case is unique, and so Potts Lawyers takes an individualised approach to each case, as every lawyer should. By retaining Potts Lawyers, you can ensure that your rights are protected and that you have a strong advocate working on your behalf to achieve the best possible outcome in the circumstances.
Contact Us for Legal Advice
If you are being investigated by your employer, or have been suspended by your employer due to an allegation that is likely to be investigated, call Potts Lawyers today to speak with one of our employment lawyers who can provide you with advice on your options.