Wk 5 – What is? Performance and Misconduct Policy

Hi everyone, I’m Peta Cussell from Project Ops and this week I am going to talk about the Performance and Misconduct Policy.

In previous weeks I have spoken about Unfair Dismissal and the Code of Conduct Policy.  The Performance and Misconduct Policy is very closely related to these two topics as it sets out the process to correct unacceptable performance or conduct (other than in situations where instant dismissal is appropriate).

The objectives of a Performance and Misconduct Policy are to:

  • correct and/or improve the standard of conduct of an employee where appropriate or necessary
  • provide any particular employee with an opportunity to correct unacceptable conduct (other than in situations where summary dismissal is appropriate)
  • ensure that all employees are treated fairly, equally and consistently, and
  • ensure that each situation is reviewed and addressed on an individual basis and in relation to the particular circumstances.

Plus having a Performance and Misconduct Policy provides some protection from claims for unfair dismissal.

However it is important the employer defines the type of behavior that it deems is ‘misconduct’ in the workplace, as well as following the proper process when conducting an investigation into an employee’s alleged misconduct.

Small businesses

Employers with fewer than 15 employees are also able to use the Small Business Fair Dismissal Code when terminating an employee’s employment. However, the Performance and Misconduct Policy offers more comprehensive guidance.

So what does ‘misconduct’ really mean?

The courts have generally determined that ‘misconduct’ involves something more than mere negligence, error of judgement or an innocent mistake. It is an act done wilfully with a wrong intention. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences.

There are various degrees of behaviour that fall under ‘misconduct’, ranging from behaviour justifying a first warning to behaviour justifying instant dismissal, which is known as ‘serious misconduct’. So what constitutes ‘serious misconduct’?

Fair Work Act’s definition of ‘serious misconduct’:

  1. Wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment
  2. Conduct that causes serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business
  3. Theft
  4. Fraud
  5. Assault
  6. The employee being intoxicated (alcohol or drugs, other than prescribed drugs) at work
  7. The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment

If an employee is guilty of ‘serious misconduct’ the employer does not have to provide the employee with the period of notice of termination and may forfeit certain entitlements normally due on termination of employment.

Breaching the Policy

Not every breach of policy will mean there is a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination, then an employee who knowingly breaches that policy will have difficulty arguing that their dismissal was unfair.

What to do when faced with employee misconduct?

  1. The employee should be given sufficient particulars of the concerns or allegations regarding their performance or conduct;
  2. The employee should be given an adequate opportunity to respond to any concerns or allegations;
  3. The employee should be given advance notice of any disciplinary meetings/interviews;
  4. The employee should be able to have a support person at any meeting if they wish;
  5. The employee’s response to the concerns or allegations should be considered and any further enquiries or investigations should occur promptly; and
  6. Whatever the form of the disciplinary action (eg written warning, dismissal), the employer should ensure that the reason(s) is/are valid. That is, the reason(s) should be sound, defensible and well founded. The reason(s) should not include any considerations that constitute unlawful discrimination.

How Project Ops can help?

Australia’s employment landscape can be confusing and imposing for small business. Its full of complex policies and changing legalities, is hard to understand and even harder to keep up-to-date with. That’s where Project Ops comes in. We have many years of experience and really understand small business.

Project Ops is a team consisting of top HR specialists, a superior client services team and has a professional license to provide a vast array of legally backed HR documentation which we tailor to suit your business, relevant awards and the nature of employment.

With Project Ops, we make HR simple! If you would like to find out how Project Ops can help your business, please get in touch!


Project Ops are one of Australia’s leading outsourcing specialists, providing some of Australia’s best talent to businesses of all sizes for one-off projects, short or long-term contracts. Specialising in Human Resources (HR), Recruitment, Business Operations, Change Management, Project Management and Event Management.