Dealing with inappropriate behaviour in the workplace is like balancing on a tightrope. On the one hand, you want to keep your team safe but on the other hand, you want to remain fair to the person accused.
Here are some steps for you to consider in deciding how to deal with the complaint.
Get the facts straight
Receiving a complaint is only the starting point. Once you receive the complaint, you should make sure you have all the relevant information you need.
Often when employers contact us about a complaint from an employee, we ask for a lot more information to get to the bottom of the problem. We want to make sure there is no misunderstanding. In our experience, it often causes issues down the line when important details are missing, or things are left ambiguous.
There is also a legal reason to take every complaint seriously. An employee making a complaint or enquiry in relation to their employment is a workplace right under the Fair Work Act 2009 (Cth). If an employee who has raised a complaint is then dismissed, demoted, disciplined or otherwise treated less favourably, they may bring a ‘general protections’ claim. In those claims the onus is on the employer to prove that the complaint was not a reason for its actions. Compensation in a general protections claim is not capped in the way it is for unfair dismissal.
Procedural fairness can cost you. If you are not sure how to deal with the problem, contact a lawyer immediately.
Assess the nature of the complaint
Not every complaint is the same, and the right first move depends on what has actually been alleged. Broadly, you are looking at three questions. How serious is the alleged conduct? How strong is the evidence at this early stage? And how urgent is the risk to other people at work while you work it out? The answers to those three questions shape everything that follows.
Employee misconduct is a broad term. Depending on the seriousness of the alleged behaviour and the evidence available, your response can range from an informal conversation, to counselling, to a formal warning, to suspension on full pay pending investigation, to termination for serious misconduct.
Some poor or inappropriate behaviour, such as occasional swearing or a rude remark, may not rise to the level of formal misconduct. This is behaviour that is not acceptable in the workplace but does not necessarily require a formal investigation. What counts as rude or improper often depends on the culture of your organisation and what has been set out in your policies.
It helps to have workplace policies and procedures in place that set expectations clearly and give you a documented framework for responding. If you don’t have these frameworks in place, you should engage an expert to prepare performance and misconduct policies tailored to your business.
General misconduct vs serious misconduct
General misconduct is behaviour that breaches your workplace expectations or policies but does not meet the threshold for serious misconduct. It may be unintentional (an error of judgement, a mistake, or negligence) or a deliberate but less serious breach. It usually justifies a warning, counselling, or a performance management step rather than immediate termination.
Some examples are:
- Misuse of company property;
- Consistent lateness or unauthorised absences;
- Failure to meet deadlines.
Depending on the degree of the problem and how often it has occurred, you may decide to have an informal conversation, issue a first or final written warning, put the employee on a performance improvement plan, or, in more serious repeat cases, consider termination after due process.
Often the best first step is write a formal letter to the employee disclosing the subject matter of the complaint. This letter can be crucial as it sets out the framework for any future potential workplace investigation.
Serious misconduct requires serious consideration. The term ‘serious misconduct’ is defined in the Fair Work Regulations 2009 (Cth), and that definition matters. Conduct that meets the definition is what allows you to dismiss an employee without notice. The regulation gives specific examples, including theft, fraud, assault, sexual harassment, being intoxicated at work, and refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. In broad terms, the defining characteristics of serious misconduct are:
- Wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract;
- Conduct that causes serious and imminent risk to the health or safety of a person; and
- Conduct that causes serious and imminent risk to the reputation, viability or profitability of the business.
If you are not sure whether the complaint requires a formal workplace investigation, or you believe the alleged misconduct to be deemed serious, you should contact a lawyer to discuss how to handle the problem before responding.
Getting this classification right is not a technicality. In an unfair dismissal claim, the Fair Work Commission asks both whether there was a valid reason for the dismissal and whether the employee was given a fair process. Employers who treat conduct as serious misconduct when it does not meet the threshold, or who dismiss without a proper investigation and without giving the employee a genuine opportunity to respond, regularly lose cases they might otherwise have won.
When to engage a lawyer
If you have received a complaint about an employee and you are not sure how to handle it, the earlier you get advice the more options you have. A short conversation up front is usually the difference between a clean process and an unfair dismissal application later.
