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Serious Misconduct.

What is serious misconduct?

Serious misconduct is defined as any action (or as the case may be, inaction) bringing the effect of destroying or undermining the relationship of trust and confidence between an employee and employer. While this is the definition, many employers will confront serious misconduct where an employee has acted in a highly dangerous manner or where there has been major breaches of the employment relationship. Once this trust and confidence is not in place, it means the employment relationship cannot continue.

After a thorough investigation and following a well structured disciplinary process, the employer can decide if an employee has committed serious misconduct.

Identifying serious misconduct.

The major question in defining serious misconduct is if the behaviour destroys or undermines the trust and confidence an employer has placed in the employee. This becomes a critical issue if the misconduct impacts the employee’s ability to perform his or her job. Serious misconduct involves the employee acting deliberately in a way that has very negative implications on his workplace, career and other third parties.

Some examples of negative behaviour that can be classified as serious misconduct include:

•  bullying
•  dishonesty
•  theft or fraud
•  violent behaviour
•  use of illegal drugs at work
•  behaviour that endangers the health and safety of the employee and others
•  harassment

Whether behaviour is actually serious misconduct will depend on the facts of each case including the employee’s explanation of the incident. This must be explored during a fair investigation and disciplinary process in order to establish if it is serious misconduct.

Actions to take when serious misconduct occurs in your workplace.

It can be quite challenging to navigate the procedural requirements when serious misconduct occurs. The best place to start is with the Employment Relations Act. It gives the four key process areas that the Employment Court and Employment Relations Authority must consider when dealing with serious misconduct (section 103A (3) of the Act).

Sufficiently investigate the allegation.

This will include interviewing witnesses to the serious misconduct, checking for any relevant documents and policies, reviewing any camera footage or video, gathering any documentary evidence and taking statements (which must be preferably signed). A high level of proof is required to substantiate that serious misconduct has occurred. This becomes more important if the employee has the potential to lose their work permit, professional licence or their ability to work elsewhere.

Raise the concerns with the employee before taking action.

The employer must duly notify the employee of the allegations or actual concerns of serious misconduct against him/her. The cover letter should outline all the issues that are being investigated. It must be crafted in a way that allows the employee to seek relevant advice or representation if need be in order to respond to the issues at hand. In cases of serious misconduct, it is important to let the employee know they could face dismissal as a result of the process.

Give the employee a reasonable opportunity to respond.

The employee must be given a fair opportunity to answer or explain the allegations, before anything else is even considered. Ultimately however, the employer is entitled to proceed without the employee’s input if they do not respond.

Consider the employee’s explanation in relation to the allegations.

The employee’s explanation must be considered with an open mind and in good faith.

Making a fair decision.

Based on these four procedural steps, the Employment Relations Act requires that the employer acts in a way that is in line with what a fair and reasonable employer would do in all circumstances. The Employer must establish that the actions taken by the employee are serious misconduct and that in the circumstances the outcome is appropriate.

For advice on how to respond to serious misconduct before it happens in the workplace, call Employsure on 0800 675 700.

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Employsure

Employsure is New Zealand's leading workplace relations specialist, working directly alongside employers to set the solid foundations for...
Auckland 201- 500 employees

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