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Misconduct refers to when an employee does something wrong or where there is an issue with that employee’s behaviour. It can cover a wide variety of different situations. As an employer, it is not always easy to know how to respond. In particular, it can be difficult to distinguish between regular misconduct and ‘serious misconduct,’ which might justify the employee’s dismissal. 

This article sets out what misconduct is, what serious misconduct is, and some common questions by employers if there is a pattern of misconduct.

What Is Misconduct?

Generally speaking, misconduct covers a wide range of issues where an employee’s actions or behaviour are at fault. This can include lower-level misconduct like using inappropriate language or wearing inappropriate clothing to extremely serious workplace violence issues. 

As an employer, your response to any misconduct must be fair and reasonable in all of the circumstances. For example, minor misconduct may lead to a warning. Serious misconduct may lead to dismissal. When deciding how to respond to misconduct, you should ensure that you conduct a fair investigation and disciplinary process.

As serious misconduct is a different category from other types of misconduct, it is crucial to identify when misconduct might amount to being ‘serious.’

At What Point Is Misconduct Considered ‘Serious Misconduct’?

By definition, serious misconduct can involve some serious implications and consequences for your organisation and workplace. Hence, you should seek legal advice if you believe that an employee has committed this level of misconduct. 

The key question to ask when considering whether misconduct is ‘serious’, is whether the misconduct undermines or destroys the trust and confidence you have placed in the employee. This is more likely if the misconduct could impact the employee’s ability to perform the job. 

For example, suppose an employee is in a position of trust (with access to a cash register, or the business accounts) and has stolen money. In that case, this casts serious doubt on that employee’s ability to be in that position.

Further, an employee’s intention is an important consideration. Serious misconduct usually involves the employee acting deliberately. However, there may be circumstances in which an employee fails to act, or acts so carelessly, that it amounts to serious misconduct.

Examples of behaviour that often amounts to serious misconduct include:

  • violent behaviour;
  • bullying;
  • harassment;
  • theft or fraud;
  • behaviour that endangers the health and safety of the employee or others;
  • use of illegal drugs at work; or
  • dishonesty (particularly relating to trust or confidence placed in the employee to do a particular task or job).

After a fair disciplinary process and investigation, serious misconduct can result in the dismissal of the employee. It is imperative not to jump to conclusions, particularly where the employee disputes the facts. For instance, your employee might deny that they have taken any money from the cash register or business accounts. Your good faith obligation requires giving the employee a fair hearing and an opportunity to give their side of the story.

What Happens if There Is a Pattern of Misconduct?

Employers commonly ask what to do if an employee repeatedly engages in low-level misconduct. Examples of this might include an employee being consistently late or using inappropriate language obnoxiously. Again, as an employer, you should carry out a fair disciplinary process in these instances. Usually, you will look to issue warnings for lower-level misconduct. If it is serious enough, you can then issue a final warning stating that you will dismiss the employee if the same behaviour occurs again.

While there is no set number of warnings that need to be issued before you can dismiss an employee, you must give the employee a reasonable chance to improve their behaviour. If it is serious enough, you can give a final warning for the first instance of misconduct. However, as always, this depends on the context and the severity of the behaviour. 

Key Takeaways

Misconduct refers to when employees do something wrong, make harmful mistakes, or when their behaviour is at issue. Serious misconduct is when these actions or mistakes are so serious as to undermine or destroy the trust and confidence you have placed in them. It might look like violence, bullying or harassment. It can also be an issue that lowers your confidence in the employee’s ability to do their job. No matter the type of misconduct, it is crucial for you, as an employer, to follow a fair disciplinary process. This is vital when the consequences may involve the dismissal of the employee.

If you have any questions about misconduct or serious misconduct, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

What is the definition of misconduct?

Misconduct is when an employee does something wrong. This can include doing something, not doing something, or through their behaviour generally. This will often result in some disciplinary action being taken by their employer.

What is the definition of serious misconduct?

Serious misconduct is misconduct that is so severe as to threaten the trust and confidence that the employer has in the employee. It typically involves more serious issues than other misconduct, such as violence, bullying, or theft. It can result in the employee’s dismissal after a fair investigation and disciplinary process.

What happens if misconduct is repeated?

Typically, employers will undertake a less serious disciplinary process for lower-level misconduct, potentially resulting in employee warnings. The employee must have a reasonable opportunity to improve their behaviour. Their employer can give a ‘final warning’ after a reasonable period, warning the employee that their employer may dismiss them if the behaviour continues.

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