Help I'm being accused of misconduct at work. What can I do?
Being accused of misconduct in your workplace can be extremely stressful.
You might have had someone make a complaint against you, or have been suspended pending investigation. You might have been given a warning letter, you might be up for disciplinary action or classification or job transfer. Worst of all, you might be at risk of being terminated.
Usually misconduct is something that is handled by your employer’s HR department. It can be confidential and follow formal warnings and meetings with your boss or supervisor.
Whatever the case, if you are a proud employee, have a good track record and have been working in the job for a while, you will want to get out of this with as little damage as possible.
You may also want to fight it.
In this article, we take a look at the best things you can do, and the best steps you can take if you are accused of misconduct, have a complaint made against you, or are going through a disciplinary process including being:
We’ll start with some basic information about the meaning of misconduct.
We then look at what you can do to protect yourself and get the best outcome if you are facing a warning, complaints, suspension, investigation, or termination.
As always, this information is for your general information and is not legal advice about your particular situation.
So, let's get started …
First of all, what is misconduct?
The meaning of misconduct can vary, but it usually means that you have taken some steps that are not allowed or acceptable in your workplace. Some examples are assault, theft, breach or disregard for workplace policies, or other serious activity that may require an investigation.
There is a wide range of behaviour that can be classed as misconduct. Misconduct can change depending upon the workplace that you are working in.
Hint: If you have an employment contract, it can be helpful to take a look at whether it includes a definition of misconduct, and the types of behaviour that would amount to misconduct.
If you are in the Australian public service, or the APS there is a Code of Conduct that you must follow, and usually an Enterprise Agreement that will set out what misconduct means in your workplace. You should take a look at the types of behaviour that would be included as misconduct in your employment contract.
What is serious misconduct?
Serious misconduct is one step above standard misconduct and can mean behaviour that is inconsistent with the continuation of the employment contract and behaviour or activity that causes serious and imminent risk to the health or safety of a person, or the reputation, viability, or profitability of the employer’s business. It can include theft, fraud, assault, if you are drunk (intoxicated) at work, or if you refuse to carry out a lawful and reasonable instruction that is part of what you are supposed to be doing at work.
So…. what do you do if you are accused of misconduct? Well, let’s take a look at what your employer needs to do:
Your employer has to be fair
Your employer has to follow fair processes if they have accused you of misconduct. You need to know what you were accused of, and your employer needs to tell you in advance the types of charges that are against you and the evidence that has been relied on to support those charges. These are standards of natural justice and they apply to all workplaces, no matter where you work.
This means that you should have an opportunity to respond and put your side of the story. You need to be clearly informed of what type of rules you have been accused of breaking, before the finding of misconduct.
HINT: If your employer hasn't taken these steps, there is a possibility that they have not given you natural justice or procedural fairness, and you might be able to fight the accusations of misconduct.
Is my employer allowed to investigate me?
In most cases, your employer needs to make the accusations fair. This means that they need to understand properly what went on. This means they usually have a right to investigate the events which are said to be the misconduct. Hint: There are certain standards of investigation and process that your employer needs to comply with.
Usually employers will need to undertake reasonable investigations before they take disciplinary action against you after you have been accused of misconduct. The investigation might involve having interviews with your workmates and other employees, who may be aware of the activity that you were accused of, and taking statements. They need to be fair and reasonable. Your employer should tell you about the investigation and also about the possible outcomes from the investigation process.
You should be given an opportunity to respond and present your version of events, and establish whether any further investigations should be carried out before a decision can be reached.
How to deal with a workplace investigation for misconduct
The first thing to remember is to remain calm.
You should think strategically and take the steps that you need to gather the evidence which might demonstrate that all the accusations that are against you may be false or if you have done something different from what you are alleged to have done.
Next, let’s take a look at what you can do to defend yourself…
How can I defend myself?
The best types of evidence are documents that show or disprove the case against you.
If someone has made a complaint against you, then you're entitled to understand the content of that complaint, and put forward documents which suggest that you may not have behaved in the way suggested.
You should look to gathering emails, witness statements and other documents to show your version of events.
But my employer wants to demote and discipline me.
This does happen. But your employer can’t just take these steps unfairly.
Take a look at your employment contract to see if the type of discipline is allowed under your agreement.
HINT: Your employer’s disciplinary action should be proportionate to the misconduct that has been alleged. So, the more serious misconduct, the more serious disciplinary action.
The proposed action needs to be proportionate
If what you are accused of is not very serious, then your employer may not be able to terminate you for the activity. It’s all a matter of what is reasonable.
Even if the discipline is allowed under the contract, you should think about how you can put forward your best references, and employment history, to keep your best foot forward and demonstrate that you have an excellent track record, which can show that the discipline is not proportionate to the activity that you are alleged to have committed.
At any meeting or conference, you should be allowed to have a support person present, to assist you with your version of events.
There are other steps that you can take, depending on you particular situation.
If you think that the misconduct action is unfair, and motivated by other reasons, don't forget that you have workplace rights! We take a look at what you can do in this article.
Now that we have given you an idea on what you can do if you are accused of misconduct. In the next article, we take a deeper look into the exact steps that you can take to protect yourself if the disciplinary process has developed further, including what to do in a conciliation.
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