Navigating employee misconduct: strategies and steps

Zara Bendit-Rosser

Solicitor

The following should not be considered legal advice and is for general use only.

Earlier this year, ‘Right to Disconnect’ provisions were added to the raft of amendments to the Fair Work Act under the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023. 

The ‘Right to Disconnect’ has been gaining attention around the world, particularly in Europe, over recent years due to the significant increase in work-related mental health issues, many linked to stress and overwork.

Australia’s rise in work-related mental health issues of late is no different and a recent Safe Work Australia report on ‘psychological health and safety in the workplace’ stresses the importance for employees to maintain healthy boundaries between work and personal life as crucial to managing their stress.

When does the change take effect?

The new provisions become effective:

26 August 2024 for all businesses (with more than 15 employees).

26 August 2025 for small business employers (i.e. those with less than 15 employees).

What is the ‘Right to Disconnect’?

The Bill defines the ‘right to disconnect’ as the right for an employee to ‘refuse to monitor, read or respond to contact, or attempted contact’ from their employer (or related parties) outside their work hours, unless it’s unreasonable to do so.

Therefore, the ‘Right to Disconnect’ provides employees a new workplace right that if exercised, prohibits an employer from taking adverse action against them. However, it’s important to note that the legislation does not ban employers from contacting their employees after working hours, nor punish employees for not responding if they choose not to.

Instead, these changes are designed to encourage employers and employees to talk about contact out of hours and set expectations that suit the workplace and the particular role of the employee. As workplaces continue to embrace more flexible working arrangements in a post-COVID landscape, greater employer and employee engagement and agreement is critical.

Understanding when an employee’s refusal to respond will be deemed unreasonable is important, and there are factors to help determine whether an employee’s refusal to monitor, read or respond to contact is unreasonable. These non-exhaustive factors include:

the reason for the contact or attempted contact;

the method of contact and level of disruption it causes the employee;

whether the employee is being compensated to remain available or perform additional work outside ordinary hours;

the nature of the employee’s role and the employee’s level of responsibility; and

the employee’s personal circumstances (including family or caring responsibilities).

What does this mean for employees?

Whilst employees have a right to disconnect, this does not mean employees can simply ignore their employer’s contact (made outside of the employee’s working hours). Employees must still be mindful of their role and responsibilities. The Right to Disconnect encourages employees to discuss contact issues, roles and responsibilities with their employer.

Employees are encouraged to have frequent communications with their employer, especially if work can arise out of working hours, to ensure both parties’ expectations and responsibilities are clear.

Where there is a dispute about the right to disconnect and/or failure to respond to a contact, both parties must first try to resolve the dispute internally at the workplace level. If this is unsuccessful, an employee will be able to apply to the Fair Work Commission (the Commission) for a “stop order” to resolve such disputes.

What does this mean for employers?

These changes do not mean employers, or contact from a third party which is related to an employee’s work, are prohibited from contacting or attempting to contact the employee.

However, if the employee refuses to respond to such contact, employers must consider whether that refusal was unreasonable, given the factors listed above. If there is any ambiguity, employers need to be careful to not take actions that may detrimentally affect that employee’s employment, such as disciplining the employee for failing to respond. This would be considered adverse action, which gives rise to an employee bringing a general protections application in the Commission.

Employers can prepare for the changes by:

Updating their employment contracts and internal policies to include any employee requirements to work, or be in contact, outside normal working hours as well as relevant remuneration.

Setting performance expectations in job descriptions and performance reviews that includes contact and work outside of normal working hours (or foreshadows that contact outside of normal working hours may be necessary in some circumstances).

Engaging with their employees about expectations on both sides in relation to work and contact outside of normal working hours.

Where can I get more information?

To assist workplaces with adapting to these changes, the Commission is required to issue guidelines clarifying how these new rules should be applied. Once these guidelines are available, they will provide practical guidance on when refusal to work outside of usual hours will be considered reasonable or unreasonable.

Whether you are an employee or employer, if you have questions or concerns relating to the Right to Disconnect, please contact Danny King Legal for further support and advice.

With thanks to our contributor – Zeb Holmes, Senior Associate.

Every employer will eventually need to respond to a situation where an employee may have committed misconduct—meaning they engaged in behaviour that violates their employment contract or breaches workplace policies and procedures. While this is not a situation anyone hopes for, it’s an important aspect of management that must be addressed when it arises.

The first step is to recognise that this is a stressful and unfortunate situation for everyone involved, and it’s something to keep in mind when navigating your way through. As employers, we naturally hope that incidents like this don’t occur, but as humans, mistakes are a natural part of life. Whether intentional or not is the crucial consideration for any employer before making any decisions.

There are many strategies to address employee misconduct since each situation is unique and will have its own nuances. To help, we’ve outlined some basic steps to guide employers effectively.

Misconduct can be brought to an employer’s attention in various ways. It might be observed directly by a manager, reported by another employee, raised by a client or other third party, or identified when a deadline was missed or a deliverable not achieved. In some cases, it may not be as clear-cut—it could also emerge from a question asked by someone or even as an anonymous tip-off, as commonly heard on true crime podcasts!

Assess and plan: Clearly define the problem based on the available information. Review the employee’s contract, relevant process documents, and policies. Develop a plan outlining the key individuals you need to consult for information, establish timelines, and determine the next steps for communicating with these individuals.
Gather information: Approach the employee and inform them you wish to address certain conduct. It’s best to share the information you have, detailing any allegations or questions you would like them to respond to in writing.
Set clear expectations and provide support: Understand that this process can be stressful for the employee and others involved. Clearly communicate that no decisions will be made until you have thoroughly investigated the concern and had discussions as needed. Inform the employee about the support available to them and ask what additional support they may require during the process.
Take the time needed: While it’s important to resolve matters promptly to maintain morale and productivity, ensure you take the time needed to consider the employee’s responses fully. Avoid making any decisions that could affect the employee or others during this period.
Be upfront and communicate clearly: It’s okay to share the challenges that may affect your ability to complete the process. Adopt a human-centric approach; being honest about circumstances and thinking encourages the same openness from the employee.
Reflect and review: Assess your existing processes and compare them against your policies to identify any discrepancies. This evaluation can help clarify if the employee was unaware of proper procedures or if their conduct was appropriate. Consider updating organisational policies to prevent similar issues in the future.
Get advice: If matters seem confusing, seek legal advice to minimise risks and assist in evaluating decisions you have made or plan to make.

How DKL Can Help

Our team of employment law specialists is here to guide you through challenging situations. We can help identify issues and guide you through the implementation of effective outcomes. Additionally, we can assist in building in-house capabilities, developing effective training programs, and ensuring your workplace is prepared to handle misconduct issues in a fair and legally sound manner.

Please visit our website or contact us for more information.