Employee Misconduct Counselling Complaints

Managing Employees – Misconduct, Investigations & Counselling

So if you’re a business owner with several employees and you’ve been in business long enough, there will come a time when something will unravel. Employee misconduct, in some form, will inevitably occur. You might see it coming, or it could come completely out of left field. Despite treating your employees well, something can still go wrong. In the last article we looked at the first, and perhaps more pleasant part of managing employees –  inducting them and managing their performance. In this article we’ll look at misconduct, handling and investigating complaints and counselling for poor performance.

Handling & Investigating Complaints about an Employee

You may at some point be confronted by a client or staff member bringing a complaint to you regarding misconduct by an employee. It may be an allegation about something like bullying or harassment, but it may also be a clear and serious case of misconduct on the part of the employee that may justify immediate dismissal. Both require investigation. You need to gather information from all parties involved to determine exactly what took place before making a decision on the correct course of action.

This task requires serious consideration of legal requirements, as the outcome is quite possibly either a written warning or other disciplinary action, or termination of employment. It’s really important that the employee is asked to attend a meeting and invited to bring a support person. You, as the employer, should also have an additional person in attendance who can act as your witness.

We recommend that you seek detailed instructions from a professional on how to conduct this process, as getting it wrong could potentially lead to an unfair dismissal claim. I have personally been involved in handling an unfair dismissal claim on behalf of an employer who failed to take the necessary steps to handle an employee matter appropriately. The employee was successful in their claim, and the employer was directed by Fair Work to make a compensatory payment to the employee. It was a costly and stressful exercise for the employer.

Seeking advice after things have gone wrong is so much more expensive than paying a little upfront to get things right. The amount of wasted time and misdirected energy that can result may be difficult to imagine if you’ve never experienced it.

Here is an overview of what needs to happen:

  • Confirm the process with the employee so that they understand that allegations have been made against them, and also understand the process of investigation that you will be following.
  • Outline the allegations made.
  • Give the employee an opportunity to respond to the allegations made against them.

Make sure that you take detailed notes of the meeting, including the date, time, names of people in attendance and items discussed by all parties. It is imperative that you obtain signatures from each person in attendance to acknowledge that the document is a true record. If someone refuses to sign or the employee declines the opportunity to bring a support person, make a note of this.

Your investigation should involve thorough documentation, such as who you interviewed, documents you reviewed, and other factors you have taken into consideration to arrive at your findings. Document the next steps that you consider appropriate as a result of your findings.

Whether the allegations for misconduct are substantiated or not, a counselling session is required.

Counselling – Poor Performance & Misconduct

The formats for counselling for poor performance and misconduct are similar. There are differences, however, so we recommend that you obtain advice specific to your circumstances

Meetings should involve four individuals and record keeping should be managed in the same manner as for handling and investigating complaints.

Your concerns need to be described in detail, as well as the action that you are considering. In the case of a prior investigation into a complaint, you need to detail your decision. Make sure that your employee has been provided with sufficient information to respond to your concerns. The meeting may need to be resumed at a later date to consider responses and investigate any matters arising out of the discussion. Make sure that you document the exact time that your sessions are paused and resumed.

It is then important for you to decide which outcome is appropriate:

  • The employee’s performance is acceptable.
  • The employee’s performance is not acceptable and:
    • No disciplinary action will be taken but the employee’s performance needs to improve or;
    • The employee is issued with a verbal warning or;
    • The employee is issued with a formal written warning or;
    • The employee’s employment is terminated.

If the employee’s performance is not acceptable and they will continue to remain employed by you, then the matter will need to be reviewed at a designated point in the future and the employee needs to be clear about the performance improvements required. These also need to be documented.

What Happens Next?

Our last article in this series will cover terminations, which will delve into a few payroll aspects as well.


Disclaimer: Some of these processes, such as investigating and managing complaints, along with counselling for misconduct and poor performance, have serious legal consequences. We recommend that you seek competent human resources and/or industrial relations legal advice to ensure that you manage this appropriately, especially before terminating an employee. We are not qualified to provide this advice. The information in this article is only provided as an overview of the aspects that you should consider when dealing with these types of matters.

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