Workplace Misconduct
Advice for Employees
If you’re facing allegations of workplace misconduct or being managed through a performance process that is unclear and devoid of procedural fairness, MV Law can help you understand your obligations and assert your rights in these processes. Facing uncertainty in your workplace is dauting and stressful, and without the right team on your side, you may experience adverse outcomes that could have otherwise been avoided.
At MV Law, our focus is on empowering you to resolve these issues at the workplace level, while being prepared for the possibility of litigation. This allows you to make informed decisions and adapt your approach as things change during the course of your matter. We tailor our advocacy to your needs and budget, allowing you to make decisions that suit you, under the guidance of and with the advocacy of our expert team.
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I've been accused of workplace misconduct. What are my rights and what should I do?
Workplace misconduct refers to wrongful, improper, or unlawful conduct by a worker that violates the accepted standards of behaviour within the workplace and can, if sufficiently serious, justify disciplinary action or even dismissal.
Misconduct is a broad term referring to wrongful, improper, or inappropriate conduct. By contrast, serious misconduct is a higher threshold. It refers to misconduct that is so grave or culpable it justifies summary dismissal, meaning the employer can terminate the employment without notice.
Serious misconduct is defined under the Fair Work Regulations 2009 (Cth) to include:
- 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;
- Engaging in theft, fraud, assault, or sexual harassment in the course of employment;
- Being intoxicated at work; and
- Refusing to carry out a lawful and reasonable instruction.
In most cases, when you are accused of misconduct, you are entitled to defend yourself via a procedurally fair process that is in line with your employer’s policies. This means you should expect to see the allegations in writing, have the proper opportunity to respond and have the assistance of a support person. You should cooperate in the process actively and honestly, carefully consider and respond to the decision maker’s decisions (which should be provided to you in writing) and consider whether you have any avenues for review of appeal.
Yes, you can. An employer generally has the right to suspend an employee on full pay for a limited period while a workplace investigation into alleged misconduct is conducted, provided that the suspension is based on a lawful and reasonable direction. Whether your employer can also withhold pay for the period of the suspension depends on the terms of your contract of employment, award or enterprise agreement.
Yes, if the alleged behaviour warrants termination and the allegations against you are substantiated, your employer may terminate your employment at the conclusion of the investigation.
Employees who are covered by the Fair Work Act 2009 (Cth) may have rights to challenge their dismissal via an unfair dismissal application in the Fair Work Commission. Other employees may have rights of appeal under other state-based legislation in the relevant industrial relations commission.
Having legal representation in a workplace misconduct matter is not necessary, but is highly recommenced. An employment lawyer can explain your rights and assist you to prepare your responses. It can be important to get the nuance of any omission you make right, as well as defend yourself in a way that does not indicate that you are ignorant of your responsibilities.
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