Allegations of misconduct

If you are an employee who is facing allegations of misconduct, or an employer who needs to investigate allegations of misconduct against one or more of your employees, you need legal help.

Allegations of misconduct need to be subject to procedural fairness. That means an employee must be provided with the details of any allegations against them, the allegations must be sufficiently detailed for the employee to be able to answer them, the employee must be given an opportunity to respond to the allegations, their response must be properly considered, and the employer may only take disciplinary action based on considerations relevant to the issue at hand.

Allegations of serious misconduct, if found to be substantiated by an employer following an investigation in which the affected employee was provided with procedural fairness, may lead to the termination of their employment without notice. Serious misconduct can include things like stealing,  fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract

Less serious misconduct and poor performance may be dealt with by way of written warning. Where the affected employees conduct or poor performance fails to improve, an employer may terminate that employee’s employment by payment of notice, after the employee is provided with three warnings and a fair opportunity to improve.

If this process is not handled properly and fairly, a terminated employee may have recourse to unfair dismissal or unlawful termination proceedings against their employer, which can lead to the employee’s employment being reinstated, the employee being compensated for lost wages, or both.