How To: Gross Misconduct Investigations

As much as organisations aim to create a thriving workplace culture, incidents at the workplace may still occur. Gross misconduct, or serious misconduct, can constitute anything from criminal behaviour to consistent non-compliance with lawful and reasonable directions.

Allegations of behaviours that constitute serious misconduct, and therefore warrant an investigation, can come as a shock and can be very upsetting. Although they may come as a surprise, every business should be prepared and equipped to manage allegations of gross misconduct and act quickly when they occur. 

This guide aims to provide a high level overview of what constitutes gross misconduct in the workplace and how to manage the immediate next steps to protect your people, your working environment and the future of your business.

What is gross misconduct?

Serious misconduct, otherwise referred to as gross misconduct, is a term defined by the Fair Work Regulations. It includes wilful or deliberate behaviour that is inconsistent with the continuation of the employee’s employment contract, as well as behaviour that causes serious and imminent risk to the reputation, viability or profitability of the business, or health and safety of a person.

If an individual has committed serious misconduct, their actions may warrant immediate dismissal from the company without notice or payment in lieu of notice. Before any disciplinary action is taken against the individual, serious misconduct must be confirmed and documented or the business risks an unfair dismissal claim or other litigation.

Examples of gross misconduct in the workplace

• Theft or fraud
• Physical violence, including assault
• Bullying
• Intentional damage to company property
• Serious breaches of company policies and procedures 
• Refusal to carry out lawful and reasonable directions
• Breaches of health and safety rules
• Misuse of company confidential information or property
• Intentionally accessing pornographic or otherwise offensive material on company hardware
• Discrimination or harassment of other employees, including sexual harassment
• Offering or accepting bribes
• Causing loss, damage, or injury through extreme negligence
• Alcohol or illegal drug use in the workplace, including being intoxicated at work
• Vandalism

Workplace Misconduct Investigations

Actions that constitute gross misconduct can have severe consequences for all parties involved.

If one or more of your employees are found to have engaged in serious misconduct, you may have reasonable grounds to dismiss these employees once you have implemented a disciplinary process. 

The first step is to undertake a workplace investigation in order to establish the facts. 

Accusations or complaints of gross misconduct must be followed up with a workplace investigation. This is an incredibly important and serious course of action that should set out to discover the facts of the situation. All workplace misconduct investigations must follow the principles of procedural fairness and be supported by the company’s own HR policies and procedures.

It is prudent that a workplace misconduct investigation is carried out by experienced and qualified professionals to:  

• Establish the facts surrounding the alleged misconduct
• Ensure due process and procedural fairness
• Ensure employers uphold Australian laws, protecting the organisation from any potential legal liability
• Ensure ongoing workplace harmony by providing a fair and extensive investigation. This also conveys to other employees a clear message that your company takes misconduct seriously and is dedicated to maintaining a safe workplace
• Assist in preventing the recurrence of any of the alleged behaviours. By conducting a thorough investigation, you may discover systemic problems that have played a role in contributing to the misconduct, which can be addressed to prevent future incidents.

If the conduct alleged amounts to serious misconduct, then you should consider suspending the employee on full pay until the investigation has concluded. This is especially so if the employee’s continued presence in the workplace may create a risk to the health and safety of themselves or others. 

Gross misconduct in the workplace underpins the importance of nailing the HR foundations within your business. Failing to have appropriate and enforceable policies, documentation or correct compliance protocols in place could leave a business open to a legal challenge.

Procedural Fairness for Serious Misconduct Investigations

A workplace investigation is necessary because the process provides the individual an opportunity to respond to the allegations against them. In their interview, they should be given the opportunity to supply any context, mitigating circumstances or other information that is relevant to the situation and which may have an impact on the outcome of the investigation.

It is a requirement of procedural fairness principles that the individual is given an appropriate amount of time to prepare and respond to the allegations. Once you have written to them outlining the allegations, the potential implications if the alleged misconduct is proven, the process that will be undertaken and the date and time of the initial disciplinary meeting, they should be afforded with a reasonable opportunity to prepare for the meeting. Allowing 24 to 48 hours’ notice of the disciplinary meeting should be reasonable in most instances. The individual should also be offered the opportunity to have a support person present. 

Other parties, including colleagues, may also need to be interviewed if they are identified as a potential witness. A workplace investigation can be a complicated and conflicting situation that impacts the working experience and environment for other employees. You should not overlook the impact of a gross misconduct investigation on the wider team. This is a sensitive time and it is imperative that HR carefully manages and communicates where necessary. For further support during this time, or after a workplace investigation has been conducted, speak to one of our expert HR consultants.

Gross Misconduct Workplace Investigation Process

Initial assessment

In this step, the initial allegations must be reviewed to determine if the alleged behaviour is potentially classified as gross misconduct. This may determine whether an investigation is required. This step may come after a workplace complaint, or when the company otherwise becomes aware of the alleged misconduct. Although organisations may wish to act as quickly as possible, this is the best time to consult HR experts or independent investigators.

At this stage, it will need to be established whether the individual involved in the alleged behaviour needs to be suspended on full pay or if any impacted employees require support. Furthermore, if the workplace investigation is related to any safety or criminal behaviour, relevant reports must be made to Fair Work, the relevant work health and safety regulator such as SafeWork, or the police. These reports will need to be made immediately.

Conducting a formal investigation and collecting evidence

The next step involves beginning the formal workplace misconduct investigation, starting with notifying all relevant or accused parties that allegations have been raised and outlining the process that will be followed.

After this, the business and/or investigators must collect any necessary evidence. This can be anything from emails, documents, CCTV footage, or physical proof of misconduct, and may also be gathered from any complainants or potential witnesses via interviews.  

Develop allegations and give a fair hearing

Once the evidence has been considered, the investigator will draft formal allegations. 

To give a fair hearing, the respondent(s) should be given the opportunity to respond to the allegations in writing, be notified of an interview, and be given suitable time to prepare their responses and find a support person if needed.

Decision making

Once all the evidence has been gathered and all relevant employees have been interviewed, all the information gathered will be considered by the investigator and findings will be determined. These findings must be clearly communicated to both the complainant (where there is a complainant in the matter) and the respondent. 

Where any allegations are substantiated, and depending on the seriousness of these allegations, the respondent should be offered an opportunity to provide any extenuating circumstances (if any) which mitigate the findings.

Following this, appropriate actions will be taken, which will be based on these findings and any relevant matters raised by the respondent. If disciplinary action is to follow, this should only be communicated with the party subject to the disciplinary action.

HumanX can help provide a comprehensive report once the investigation has concluded, highlighting the process, the evidence and the findings. This will assist the employer to respond to any potential legal claim which may follow. 

From there, we can help with managing the outcome of the investigation. If the ultimate decision is termination, other members of the HumanX team can step in as workplace termination consultants, ensuring a smooth transition. We can also aid in any policy updates or workplace mediation that may be required to avoid repeating this issue in the future.

For more information about conducting a workplace investigation, you can read our dedicated guide.

How long does a misconduct investigation take?

There isn't a straightforward answer to this question. The duration of a misconduct investigation can vary depending on the circumstances and complexities of the allegations, the amount and clarity of evidence gathered and the number of employees involved in the incident.

A fair and thorough investigation should not be rushed, but at the same time, it is crucial to start as soon as possible to minimise disruption in the workplace and ensure the safety of all employees. Depending on the nature of the investigation, it can take anywhere from a few days to a few months.

Serious or gross misconduct leading to dismissal

Sometimes, due to the nature of serious misconduct, the behaviour will lead to immediate dismissal. However, this may not always be the case; other disciplinary measures may be implemented in certain circumstances. For instance, outcomes may include a written warning, a letter of concern, no action, a reprimand, a final written warning or a verbal warning.

If dismissal is the end measure, it is vital to ensure procedural fairness to avoid any potential legal issues. This is once again where HumanX can come in; with extensive experience in misconduct investigations, we can help you mitigate unfair dismissal allegations and legal proceedings.

Misconduct interview questions

To conduct a fair and balanced investigation, asking the right questions during interviews is essential. Gross misconduct investigations require expertise and a thorough understanding of workplace laws. It is crucial to work with experienced, professional workplace investigators such as HumanX to ensure fair and effective investigation.

The style of question applicable to your interview will depend on the specifics of the misconduct. However, some samples questions that could be asked include the following:

• Can you provide a detailed account of the incident?
• Were there any witnesses to the incident?
• Do you have any evidence that could be used to support your account?
• Can you explain why you acted in the way you did?
• Did you understand the implications of your behaviour?

We hope this article has provided a clear and comprehensive understanding of adequately handling a serious misconduct complaint within your company. Here at HumanX, we are a team of professional, independent workplace investigators with the relevant experience to help your company through any period of turbulence. If you are seeking support navigating through these times, please contact our knowledgeable team today.

The information contained in this article is for general guidance only. It is not intended that the article or part of it should be relied upon as advice. Information provided may not apply in all circumstances or in particular situations. No person should act or refrain from acting on the basis of such information.