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The issue of misconduct is a complex one for employers, and one that needs to be managed correctly. The meaning of misconduct can vary, but ultimately, it is when an employee does something wrong through their action or inaction, or it can simply be their behaviour in general. Misconduct may result in disciplinary action. However, this depends on the severity of the misconduct, and whether it has happened before, as well as several other factors.

Misconduct versus serious misconduct.

Distinguishing between whether an employee’s behaviour or action is misconduct or serious misconduct is often where employers make mistakes in managing the behaviour.

A simple way to distinguish between the two is that serious misconduct will apply if the act may have the effect of destroying or undermining the relationship of trust between employee and employer. Serious misconduct, pending a formal and fair investigation, may lead to terminating an employee whereas misconduct on its own will not result in dismissal.

Identifying misconduct.

Acknowledging the difference between misconduct and serious misconduct is important. However, it is equally important to know what misconduct on its own can include. Some examples of misconduct can take the form of inappropriate language, misusing the internet, or minor breaches of the employment agreement such as inappropriate clothing, or lateness.

Repeated misconduct.

Should there be accusations or a view that misconduct has occurred, an investigation is the best way forward. Even if there is an allegation of the same kind of misconduct, it is imperative that a new investigation is undertaken for each instance. An investigation into each claim of misconduct will ensure that the employee has been given time to rectify their conduct, and understands whatever is taking place is not permitted in the workplace.

A documented series of investigations into repeated misconduct, will enable employers to use this to dismiss the employee. This scenario is not ideal, but if the employee has proven to continue the same type of misconduct over and over, it may be for the best that they are terminated from the workplace.

For a successful termination, and to ensure the employee does not have grounds for unjustified dismissal, a fair investigative process must be undertaken. Only after multiple instances of repeated misconduct, with no improvement displayed by the employee, can dismissal take place. There is no set number of warnings, but the employer’s response must be fair and reasonable.

Does misconduct apply if it is outside of work?

Misconduct outside of work can result in disciplinary action for many reasons, such as a damage to the relationship of trust between the employer and employee, or the action bringing the employer into disrepute.

Misconduct outside of work.

Bringing the employer into disrepute is one of the more obvious ways in which misconduct outside of work may result in disciplinary action, such as dismissal. This type of misconduct does not need to be proven to the point where an actual negative impact has hit the business’s reputation, but only the potential for reputational damage.

Misconduct on social media.

The activity of employees on social media can be cause for disciplinary action if it is repeated or serious. In this case, to minimise the potential for any issues as a result of social media posting by employees, a social media policy can outline expectations and what type of behaviour is and is not accepted, regardless of whether posting is done during work hours or not.

A well written and implemented social media policy should cover posts that are critical of the employer, or other colleagues, as well as any instances of bullying. Special emphasis should be placed on the need for commercially sensitive information to be kept off social media. An added layer should document the process if an employee posts and proves they are not doing what they said they would be doing, for example if an employee is on sick leave and then checks in at a sport venue.

Employsure helps over 1,000 SMEs across New Zealand manage their employment relations and work health and safety, with misconduct being a large component of the advice given to clients. For advice and support please contact our advice line on 0800 675 700.

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