Managing repeated misconduct in the workplace is a common source of frustration for employers in New Zealand. Some employers struggle with following the correct process and procedures when managing repeated misconduct, as it can be time-consuming and impact their normal business activities. However, it is important to follow these procedures in order to avoid an unfair dismissal claim.
Repeated misconduct is a series of repeat offences which go against the expectations of professional behaviour. This can happen in many aspects of the workplace, such as showing up to work late or falling short of performance expectations.
There is no exact number of instances where behaviour is defined as repeated misconduct. Generally speaking, if an employee has been given several warnings about their behaviour and fails to improve themselves, this would be considered repeated misconduct.
If the misconduct is particularly serious, a second offence may be enough to warrant a fair dismissal.
No matter how serious the misconduct is, employers should respond in a fair and reasonable manner. When managing a repeat offender, it is important to consider how the behaviour is impacting the workplace. Some of the most common outcomes of repeated misconduct is:
Early intervention is the most effective way to manage repeated misconduct. The sooner a problem is acknowledged, the sooner both parties can work together to solve it. Employers should openly discuss the problem with their employee and issue a written warning which:
This warning should give the employee a chance to reflect on the situation and have enough time to rectify the issue. It may be unlawful to dismiss an employee who has not been given enough time to redeem their conduct or behaviour.
While it may be tempting to immediately dismiss a repeat offender, employers should still follow the correct process and procedures. However, there is no definitive number of times an employee needs to repeat an offence in order to be dismissed on fair grounds.
Whether or not an employee can be dismissed on the basis of repeated misconduct depends on:
If the problem still persists and has either become serious or the employer has given the employee enough chances to redeem themselves, they may be able to dismiss the employee on fair grounds.
If the first case of misconduct is serious enough, employers can issue a first and final warning before or terminate the employee’s employment. However, termination should only be considered if there is no chance or opportunity for the employee to resolve their behaviour. The question to ask is whether the misconduct has undermined or destroyed the trust and confidence an employer has placed in the employee.
Failure to provide supporting evidence of serious misconduct when dismissing an employee could lead to an unfair dismissal claim.
For advice on repeated misconduct and what it means for your workplace, contact Employsure on 0800 675 700.