Our Expertise > Dealing with Misconduct

Dealing with Misconduct

As a Leader or Manager you will eventually need to deal with poor behaviour from one of your employees.

There are two very important things you need to take care of when you are dealing with bad behaviour.
  1. The Process you follow
  2. The Decision you make
If you don't get your process right you will not be able to claim that your decision was a good one.

Have you ever been on Jury duty or watched a court hearing on TV?  I am going to assume you have.  Now think about the people involved.  

They are:
  • The Defendant - this is the person being accused
  • The Plaintiff - this is the person making the complaint
  • The Jury - these are the people who make the decision about whether bad behaviour occurred
  • The Judge - this is the person who controls the process, makes sure things run smoothly and makes a decision about the penalty
  • The representatives (lawyers) - these are the people who help the Defendant and the Plaintiff present their side of the story
Before the court hearing or investigation takes place there are always four things that the Defendant has:
  • They know exactly what they are being accused of​ (including the law they may have broken)
  • They have seen all of the evidence that relates to the accusation (if new information turns up at the hearing the Judge will stop the hearing so the Defendant can respond to it)
  • They have been told that they have a legal right to representation
  • They know exactly what the worst-case penalty could be
Once the hearing starts the Judge will set the scene and make sure everyone knows why the hearing is taking place.

During the hearing both the Plaintiff and the Defendant get to present their side of the story.  This is usually un-interrupted. The Jury sits and listens impartially and objectively to all of the information and then will adjourn to consider whether the Defendant is guilty or not.

If the Jury finds the Defendant guilty the Judge will then consider the appropriate penalty.  Often the Judge will consider the opinions of both the Defendant's and Plaintiff"s representatives before making a final decision.  The general rule is that the severity of the crime must be consistent with the severity of the punishment.

This is how our legal system tries to make sure that natural justice occurs.  Everyone gets a fair opportunity to have their say.  The assumption from the outset is that the Defendant is innocent until proven guilty.

Now, let's think about your employment situation:
  • Your Employee is the Defendant - they are being accused of something
  • As the Employer you are the Plaintiff - you are accusing the employee of bad behaviour
  • You are also the Jury - you are the person who makes the decision about whether bad behaviour occurred
  • You are also the Judge - you control the process. You make sure things run smoothly and you make a decision about the penalty
  • Both you and your Employee are entitled to representation.
At first glance, you would think that, as an Employer, it should be easy because you have three roles. You are the Plaintiff, the Judge, and the Jury.

The truth is that because you have three key roles you have three times the responsibility to get things right.

There is a bit more ...

Before your investigation takes place there are always four things that your Employee should have:
  • They should know exactly what they are being accused of​ (including the rules or code of conduct they may have broken)
  • They should have all of the evidence that relates to the accusation
  • They should have been told that they have a legal right to representation
  • They should know exactly what the worst-case penalty could be
The best way to prove that you have done this is by giving your Employee an Invitation to a Disciplinary Investigation Letter that sets out all of the above.

Once you start your hearing you will need to set the scene and make sure everyone knows why the hearing is taking place.  This is usually best done by reading through the invitation letter.

You need to make sure that during your hearing your Employee gets to present their side of the story.  This should be done un-interrupted. You may want to ask some 'open-ended' questions to keep them talking about the situation.  If you find yourself asking questions that can only be answered by "Yes" or "No" then your questions are 'closed' and you could be putting words in your Employee's mouth. Judge's don't do this, nor should you.

Your main job during a hearing is to listen impartially and objectively to all of the information your Employee provides (just like a Jury).  The best way to prove that you listened is to be able to rely on your disciplinary meeting notes.

Like a Jury it is always advisable to adjourn for a reasonable period of time (usually overnight) to consider all of the information.  Once you have thought it through you will be in a position to decide whether the bad behaviour has occurred.

If you find that it has, you will be in a position to consider a penalty or outcome (back to being a Judge). ​The general rule is that the severity of the crime must be consistent with the severity of the punishment.  It will be important to take into consideration all of the circumstances:
  • Are you sure it happened?
  • Why did your Employee do it?
  • Did the Employee know that what they were doing was wrong?
  • How has the person been trained or supervised?
  • Are there personal circumstances that made the behaviour unusual for the Employee?
  • Has the Employee shown any willingness to address the behaviour or take responsibility for it?
  • Is what happened really so serious as to warrant the penalty?
  • How long has the Employee been with you?
  • What is their performance history - do they have any current warnings?
  • Is there a practical alternative to the penalty you are considering?
  • Do you believe it is likely to happen again?
It pays to consider the opinions of your Employee and their representatives before making a final decision. The best way to do this is to advise them of your proposed decision, what you believed happened and what influenced your decision about the penalty. 

Like our legal system, you have to make sure that natural justice occurs.  You have to make sure everyone gets a fair opportunity to have their say.

Your assumption from the outset should be that the Employee is innocent until you can say, on the balance of probability, that they are guilty.

Then you can take the appropriate action:
 

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