What is gross misconduct at work?

As a business owner, you’re faced with the daunting task of addressing what is commonly known as 'gross misconduct'. But what exactly constitutes it, and how should it be handled to avoid the many potential legal pitfalls?

Mishandling these situations can lead to significant consequences for your business. Unfair dismissal claims can be both costly and damaging to your reputation. So, it’s best to get advice from employment relations experts.

In this article, we’ll explore what gross misconduct is, provide examples, and guide you through the responsibilities and processes involved in managing these serious workplace issues.

What exactly is “gross misconduct”?

Gross misconduct refers to actions or behaviours by an employee that are so severe in nature, they justify dismissal without notice or pay in lieu of notice. These actions typically undermine the trust and confidence essential to the employment relationship, making it impossible for the employer to continue with the contract of employment.

Gross misconduct can encompass a wide range of behaviours, including but not limited to:

• Theft or fraud

• Physical violence or threats

• Serious breaches of health and safety regulations

• Harassment or discrimination

• Intoxication at work due to alcohol or drugs

• Gross negligence or insubordination

Knowing exactly what constitutes as gross misconduct is crucial for employers to ensure they handle such situations appropriately and lawfully.

What are some examples of gross misconduct?

Gross misconduct can take many forms, so here’s a few hypothetical scenarios to illustrate what it could look like in your workplace:

Embezzlement

Imagine an employee, trusted with company finances is found to have been embezzling funds over several months. This discovery not only shocks management, but also undermines the trust of the entire team, leading to dismissal and potential legal action

Physical assault

Consider a situation where an employee, during a heated argument, physically assaults a colleague. This act of violence creates a ripple of fear and insecurity among your other employees, necessitating swift and decisive action to ensure safety in your workplace

Derogatory comments

Finally, imagine a situation where an employee has repeatedly made derogatory comments towards a co-worker based on their race, sex, or sexuality. This behaviour not only violates company policy, but also creates a hostile work environment, prompting you to take immediate steps

These are just some common situations that may constitute gross misconduct, but it’s important to recognise the signs to make the best judgement on a case-by-case basis.

What are my responsibilities as an employer when dealing with gross misconduct?

When dealing with gross misconduct, you as a business owner have a duty to handle the situation fairly and in accordance with the law. This includes following a fair disciplinary process and ensuring that any dismissal is reasonable.

First of all, you must ensure you conduct a thorough investigation into any alleged misconduct. Gather evidence, interview witnesses, and always ensure the employee has been given a chance to explain their side of the story.

Under the Fair Work Act 2009, employers must follow a procedurally fair process when dismissing an employee for gross misconduct. This generally includes providing the employee with a written statement of the allegations, holding a disciplinary meeting or hearing, and allowing the employee to be accompanied by a support person, such as a colleague or union representative.

Before going ahead with dismissal, employers should evaluate whether there are any alternative options, such as a final written warning or demotion. Dismissal should be a last resort, used only when the misconduct is so severe that it destroys the employment relationship.

It’s crucial to document everything throughout this process. This includes notes from meetings, copies of correspondence, and records of the investigation. Proper documentation can help defend against any claims of unfair dismissal.

What is the disciplinary process I should follow when addressing gross misconduct?

Handling gross misconduct requires a structured approach, so that you can ensure fairness and compliance with employment law. Here are the key steps to follow:

1. Investigate thoroughly to gather all facts and evidence.

2. Notify the employee in writing about the allegations and the upcoming disciplinary hearing

3. Hold a disciplinary hearing where the employee can present their case, accompanied by a colleague or union representative.

4. After the hearing, decide on the appropriate action, which could range from a warning to dismissal.

5. Provide the employee the ability to appeal the decision if they feel it was unfair.

For more reading on this topic, we have articles on what are disciplinaries and 10 ways to an effective disciplinary procedure.

Preventing gross misconduct in the workplace

Preventing gross misconduct starts with creating a positive and transparent workplace culture. One of the most effective strategies is to establish and communicate clear policies regarding what constitutes acceptable behaviour and the consequences of gross misconduct.

It’s essential all your employees understand these policies from the outset. If you’re unsure of what should be included in your policies and handbooks, a great start would be to use a HR document library with ready-to-use, compliant templates.

Regular training is also crucial and can be easily and compliantly shared with employees via an online learning management system. By educating employees and managers on workplace conduct, ethics, and the importance of adhering to your company policies, many issues can be prevented before they ever crop up.

Afterwards, it’s important to foster an environment where employees feel comfortable reporting concerns or misconduct without fear of retaliation, so they can help you weed out and address issues early.

Consistent enforcement of policies is another key consideration. Applying policies fairly across all levels of the business can help prevent confusion and potential misconduct.

Finally, providing support in the way of employee assistance programmes (EAPs) can help employees deal with personal issues that might lead to misconduct, or help those who have been affected by the behaviour of another employee.

What are the legal risks of mishandling gross misconduct?

Mishandling claims of gross misconduct can have serious legal and financial repercussions for employers. If the disciplinary process is not conducted fairly and in accordance with the law, you may face claims of unfair dismissal.

According to the Fair Work Act 2009:

• Most employees must have completed at least 1 year of continuous service (or 2 years if employed by a small business with fewer than 15 employees) to be eligible to make an unfair dismissal claim.

• Employees who meet this minimum period can challenge a dismissal if they believe it was harsh, unjust, or unreasonable.

Employers who fail to follow procedurally fair processes — such as conducting a proper investigation, providing a written statement of allegations, holding a disciplinary meeting, and allowing the employee to have a support person present — increase the risk of an unfair dismissal claim.

If a claim is successful, the Fair Work Commission may order:

• Reinstatement of the employee, and/or

• Compensation, which can include lost wages. Compensation amounts vary depending on circumstances, such as length of service and the employee’s position.

Following a fair and documented process is the best way to reduce legal risk and protect your business.

Need more support from BrightAdvice?

Understanding and managing gross misconduct is crucial for maintaining a fair and lawful workplace.

If you need more support, BrightAdvice offers 24/7 expert employment relations advice to help you navigate these situations on a case-by-case basis.

Book a demo with our experts today or call us on 1 300 029 198 for a free product demo.