How to investigate misconduct

Misconduct cases can be complex and stressful for everyone involved. Learn about the different kinds of misconduct you might encounter in the workplace, and how to go about investigating an employee’s behaviour.

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What is misconduct?

Misconduct is defined as any form of wrongdoing in the workplace.

Minor misconduct

Common examples:

  • Lateness
  • Being careless or negligent
  • Using offensive language
  • Being rude to others
  • non-serious breaches of health and safety

These offences are usually dealt with at a low level, and only become a disciplinary matter if the problem is ongoing.

Serious misconduct

This is a situation where an employee’s behaviour makes someone feel threatened or unsafe, or the act results in a major loss of trust in the person.

Common examples:

  • Theft
  • Assault
  • Bullying
  • Harassment
  • Serious breaches of health and safety
  • Using drugs or alcohol at work
  • Wilfully damaging property and equipment  

Serious misconduct should lead straight to a disciplinary process

How to investigate misconduct

First, you need to find out what actually happened, especially if there are conflicting accounts. This is likely to include a review of the physical evidence available and interviews with the employee’s line manager, witnesses and the employee. If you need to speak to the employee, you are required to warn them the incident may constitute misconduct and that what they say could be relevant in a disciplinary process. Sometimes, a quiet word with the employee is enough to ensure a minor incident will not happen again.

Set up a meeting

Invite the employee to a meeting where they can tell their side of things. They should be given:

  • An outline of your concerns
  • Access to any relevant documents
  • Time to prepare a response
  • The opportunity to bring a support person or legal representative

Make sure they understand the seriousness of the situation and the possible consequences of this process. During the meeting, ask the employee to share their perspective.  

Always listen with an open mind. If the employee is silent or reluctant to participate, encourage them. Ask open questions and emphasise that you are there to listen.

Take thorough notes during the meeting and any subsequent ones, so you have a record of all related conversations. It’s worth asking a second person to take notes on your behalf so you can concentrate on the matter at hand.

Review the evidence

After the meeting, reflect on the employee’s explanation and consider your response. If the employee’s comments indicate there is more to the matter, you’ll need to investigate further.

You will need to decide if the employee’s actions constituted misconduct or serious misconduct given the circumstances, and what action to take. You must carefully consider the nature of the offence, the employee’s explanation, all relevant information (e.g. witness reports, physical evidence, the employment environment and mitigating circumstances) and the alternatives available such as training, coaching or supervision.

Consider the actual nature of the offence, the surrounding circumstances and the employee’s explanation. An offence can only be deemed to be serious misconduct if it undermines the trust and confidence you have in the employee. You also need to genuinely believe that misconduct has occurred to initiate disciplinary or corrective action. This includes having reasonable proof.

Communicate your findings

The more serious the offence, or the more serious the possible consequences, the greater the level of proof required. When you have made your decision, meet with the employee again to outline your decision and the reasons for it.

In serious or complex situations, it’s a good idea to provide the employee with a preliminary decision and to allow the employee to comment before a final decision is made. The employer must genuinely consider the employee’s comments before making their decision.  

Finally, write a letter to the employee confirming your decision, the reasons for this decision, the expected improvement and timeframes (if applicable), and any other relevant information.

Disciplinary action 

Any disciplinary action needs to be fair and reasonable given the circumstances. This means there was a genuine work-related reason for taking disciplinary action, you genuinely and reasonably believed such action was required, and you followed a fair process in reaching and implementing this decision.

If you do decide to take disciplinary action against an employee, it’s important to seek legal advice first.