A practical approach for employers

When concerns about an employee’s behaviour arise, it’s natural to worry about what happened, how to respond, and whether you’re handling the situation the right way.

Here are some steps to help you navigate the situation in a way that looks after your employees and reduces risk for your business.

Be clear on whether it’s a performance issue or misconduct

One of the first questions to ask is whether you’re dealing with a performance issue or misconduct. A performance issue usually involves an employee who is trying to do their job but isn’t meeting the required standard. Misconduct involves behaviour that breaches workplace expectations, policies or lawful and reasonable directions. More serious conduct, such as theft, fraud, violence or serious safety breaches, may amount to serious misconduct and require a more formal response.

Stop it escalating and record the facts

When an issue arises, your priority should be to stabilise the situation and gather information. Depending on the circumstances, that may involve separating employees who are in conflict, stopping unsafe work or preserving relevant evidence.

Good record keeping is important – record what you know, including what happened, who was involved and any immediate impacts (eg safety, customer complaint, lost revenue, damage).

Ensure procedural fairness

Procedural fairness is an important part of managing misconduct. Put simply, it usually means:

• Telling the employee the concern (with enough detail to respond)
• Giving them a real chance to respond before you decide on the outcome
• Considering their response genuinely (keep an open mind)
• Allowing a support person in meetings
• Taking into consideration all the evidence before deciding an appropriate outcome

A fair process helps protect both your business and your employees and can reduce the risk of disputes later. The Fair Work Commission considers procedural fairness closely in unfair dismissal matters. Under the Fair Work Act, factors include whether there was a valid reason and whether the employee was notified of the reason and given an opportunity to respond.

Choose a response that fits the situation

Not every issue requires a formal investigation. Low-level, first-time matters may be addressed through an informal conversation and a file note. More serious or repeated concerns may warrant a formal warning, while significant allegations, such as bullying or sexual misconduct allegations, may require a workplace investigation.

Possible outcomes could include coaching, training, a formal warning, changing duties (if appropriate), termination with notice, or (in limited cases) summary dismissal.

When dealing with a misconduct matter, aim for:

• A private conversation
• Respectful language
• A clear explanation of why it mattered and what policy/expectation applied
• Written confirmation of outcomes and expectations
• Good records stored confidentially

If you’re considering dismissal, it may be worth getting expert advice to make sure you meet relevant obligations under the Fair Work Act.

Avoid common mistakes

Acting too quickly: Making disciplinary decisions before gathering all the facts.

Poor documentation: Failing to record conversations, warnings, and decisions.

Pre-determining the outcome: Starting an investigation with a decision already made.

Inconsistent treatment: Disciplining one employee but not another for similar conduct.

Need support?

Misconduct matters can be challenging, particularly when you’re trying to manage it on top of your day-to-day operations. If you’re dealing with a serious allegation, considering dismissal, or simply want confidence that you’re handling the process fairly, it’s a good idea to seek advice early.

Our HR support team can help you work through a fair process, have difficult conversations, and plan the right response.