For employers, understanding this behaviour and knowing what action to take is key to the employer meeting its legal obligations to its employees.
TYPES OF INAPPROPRIATE BEHAVIOUR
There are generally three levels of behaviour that are all seen as inappropriate and have varying degrees of seriousness:
- Inappropriate conduct;
- Misconduct; and
- Serious misconduct.
Inappropriate conduct is behaviour which is not acceptable in the workplace but which falls below misconduct because it:
- involves conduct which less serious than misconduct;
- involves a mere negligence, error of judgement or innocent mistake; and/or
- is not done intentionally or wilfully.
Examples of behaviour that indicate inappropriate conduct include:
- Rude, loud, or insensitive remarks;
- Displaying personal effects in the workplace that could be perceived as inappropriate;
- Swearing in the workplace (if this is not part of the usual workplace culture);
- Shouting or generally ranting out loud about something but which is not specifically targeted at an individual; and
- Behaviour that is generally undignified or crass (but not illegal).
Varying degrees of behaviour fall under the general description of "misconduct", ranging from behaviour justifying a first warning to behaviour justifying summary dismissal.
The Courts have generally held that "misconduct" involves something more than mere inappropriate conduct, negligence, error of judgement or innocent mistake, and it implies an act done wilfully with a wrong intention.
To determine whether a particular pattern of behaviour is misconduct, regard must be had objectively, to the nature of the conduct itself, not the consequences.
Examples of misconduct include:
It is important for employers to bear in mind that each situation is different, therefore misconduct in one case may not amount to misconduct another case.
- Using abusive or insulting language;
- Wilfully contravening workplace policies;
- Excessive and ongoing lateness;
- Knowingly disclosing confidential information; and
- Deliberate misuse of company equipment.
Serious misconduct is, as the name suggests, behaviour that is serious enough to warrant summary dismissal as a potential consequence.
However, it is important for employers to be aware that the term "serious misconduct" is not a subjective term that is left up to the interpretation of the individual employer.
Serious misconduct has its ordinary meaning at law and it is defined in the Fair Work Regulations.
It includes the following:
- wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
- conduct that causes serious and imminent risk to:
- the health or safety of a person; or
- the reputation, viability or profitability of the employer’s business.
- the employee engaging in theft, fraud, or assault in the course of the employee’s employment;
- the employee being intoxicated at work; and
- the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
Examples of serious misconduct from case law include:
- consistent unreliability in the workplace and a demonstrated lack of commitment on the part of the employee to improve reliability in contravention of written warnings;
- physical fighting and other aggressive behaviour at work;
- intoxication while operating heavy equipment at work creating a serious health and safety risk; and
- deliberate disobedience in refusing to follow a lawful and reasonable direction from an employer.
DISCIPLINARY ACTION - RELEVANT FACTORS
When an employee has engaged in inappropriate behaviour, it is incumbent on the employer to take reasonable and proportionate disciplinary action. Most employers would have policies and procedures in place to deal with employee behaviour in relation to their employment.
Termination of employment will not be an appropriate response in every case. There are other disciplinary options for employers such as counselling, written warnings, and retraining and behaviour modification.
When considering what disciplinary action to take, employers should:
- Examine the conduct. This involves looking at the nature of conduct, whether it involved deliberate or mistaken acts and/or omissions), the frequency of the conduct and the consequences of the conduct, for example its impact on the business and/or colleagues. It may be necessary to seek outside assistance from an external investigator depending on the circumstances of the conduct.
- Consider the context in which misconduct occurred. Has the employee received prior warnings for misconduct? If so, was the employee made aware of the consequences of continued misconduct, for example, dismissal as a consequence? What circumstances lead to the conduct? Was anyone else involved? Interview witnesses if necessary.
- Consider whether there is a relevant policy/procedure that could have been breached by this behaviour? If that is the case then what does that policy say?
- If the employee has breached a policy then the employer will need to consider the employee's knowledge of the policy. Is there a requirement for employees to familiarise themselves with workplace policies? If so, how is this done? Is training provided by the employer and is that training kept up to date?
- What about the culture of the organisation? Has there been a longstanding practice of this type of behaviour (whether detected or not). Is there a history of the employer tolerating or even condoning the misconduct, even if inadvertently?
- How have other employees who have engaged in this behaviour been treated? Any inconsistent treatment of other employees guilty of similar misconduct is not viewed favourably by the courts.
APPROPRIATENESS OF PROPOSED DISCIPLINARY ACTION
When the employer has decided on a proposed course of disciplinary action to take, the employer should also turn its mind to:
- The likely consequences of the disciplinary action on the personal and economic situation of employee taking into consideration matters such as the employee's:
- length of service; and
- service record/disciplinary history;
- The harshness of these consequences for the employee and his or her dependents including the employee's chances for reemployment if termination is being considered.
- Health and safety considerations. For example, sometimes the continuing presence of an employee in the workplace will create a health and safety risk to other employees. In this case, the employer must take action to control that risk.
- Employers should consider whether there are any possible grounds for the employee to pursue a general protections claim and ensure that those factors are unconnected with reasons to proceed with disciplinary action. If unsure, it is sensible to seek legal advice before proceeding.
- If the employer's choice of disciplinary action is to provide a written warning letter, this letter should contain the following:
- Explain the conclusions reached regarding the employee's conduct;
- Explain the reasons for those conclusions; and
- Specify the consequences of the conduct and the consequences of any further misconduct up to and including termination.
APPROPRIATE ACTION FOR EMPLOYERS
This article is a very brief introduction to what can be a difficult workplace issue for employers to traverse. When dealing with inappropriate behaviour it is important for employers to bear the following points in mind:
- Don't shoot first and ask questions later.
- Ensure that you know, and follow, your business policies.
- Clearly identify the conduct for which disciplinary action is being taken.
- Where appropriate, fully investigate or interview all relevant witnesses.
- Clearly communicate to the employee the conduct which they are alleged to have committed.
- Allow the employee an opportunity to respond.
- Make a decision in relation to the alleged conduct that is fair and proportionate to the conduct committed and having regard to the employment history.
- Seek professional advice if unsure.
When inappropriate behaviour is not properly managed, the consequences can range from minor workplace disruption, to the employer facing one or more workers compensation claims and an investigation from the relevant safe work authority.
David Thompson (Melbourne)
Shawn Skyring (North Ryde)
Emily Slaytor (North Ryde)
Martin Dunne (Sydney)
Sarah Sealy (Hobart)
The Hunt & Hunt national team advises on compliance with all workplace and industrial relations issues, modern awards, and workplace legislation including the Fair Work Act 2009; equal opportunity laws and discrimination; and workplace/occupational health and safety laws including critical incident management advice, policy implementation and defending prosecutions.
Disclaimer: The information contained in this update/case note is not advice and should not be relied upon as legal advice. Hunt & Hunt recommends that if you have a matter that is legal, or has legal implications, you consult with your legal adviser.