With an increased focus and greater education about psychosocial health and wellbeing in the workplace, we have seen an increase in complaints about bullying, harassment and misconduct being raised in Australian workplaces. An increasing number of workers have reported that they have been subject to inappropriate behaviour in the workplace, at some point in their career. Complaints raised are often highly emotive, and can be underpinned by personal beliefs and perceptions, often leading to a conflict between personal standards of behaviour and what legal frameworks may define as being inappropriate. Not every employee grievance raised in the workplace can be classified as misconduct.
Indeed, many common workplace complaints lodged by employees don’t meet a practical threshold for disciplinary action. It’s important for managers, supervisors and HR professionals to recognise the difference between personal standards, Company policy, and professional differences, and this is key to managing employees fairly.
Understanding what does (and doesn’t) constitute misconduct is essential to ensure procedural fairness and fewer challenges to disciplinary decisions with the Fair Work Ombudsman.
So, what is Misconduct?
Under Australian workplace laws, misconduct typically refers to deliberate or serious breaches of an employer’s policies, procedures or code of conduct.
The Fair Work Act 2009 state that:
Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, sexual harassment or refusing to carry out a lawful and reasonable instruction that is part of the job.
Most leaders and HR professionals know the definitions, however in complex cases, the lines between performance issues, interpersonal tensions, poor leadership decisions and simultaneous expressions of an employee’s rights, can be confused with insubordination, poor behaviour, bad language and much more. A combination of issues can cause frustration but an objective view is required, to ensure disciplinary action is not too harsh or unjust.
So, let’s take a look at 5 common issues that are unlikely to be deemed as misconduct:
1. Professional differences
It’s not unusual for team members to disagree, especially in environments that require technical knowledge, skills and collaboration. Indeed, a company with a good culture will encourage team members to speak up with ideas and alternative viewpoints, without fear of retribution. However, and depending on multiple factors on any given day, robust conversations can sometimes be mistaken for rudeness or disrespect, and at times, escalate into an argument. This might then lead to an employee complaint … but is it misconduct?
Case study: During a project meeting, two engineers strongly disagreed about the best approach to troubleshoot a system fault. One insisted on parking the fault in the interest of keeping costs down, while the other wanted to run further diagnostic testing. Voices became raised and a nearby colleague felt uncomfortable, with one party reporting unreasonable behaviour and bullying by the other. While the debate was heated, and the disagreement felt like a personal attack to both, the disagreement was found to be a passionate difference of opinion. In this case, the behaviour proved not to be misconduct, but an emphasis was placed on respectful communication going forward.
Tip for employers: Check whether interpersonal tensions are due to professional differences of opinion arising from passion for the subject, limited mentalising of feedback, and each party’s own contribution to the disagreements. The key here is to differentiate behaviour from a work-related opinion. Unless the behaviour is abusive, discriminatory or breaches a clear policy, this is more likely a team dynamic or communication issue than misconduct.
Criticism of Work Practices: It’s not unusual for employees to question or criticise how things are done. Whether it’s a workflow process, leadership decision or broader organisational practice, it’s likely to be a sign that an employee wants their ideas to be recognised and acknowledged. While this may ruffle a few management feathers, it’s more often a sign of an employee wanting to engage. Criticism isn’t misconduct if it is supported by respectful feedback and discussion.
2. Interpersonal issues and general disengagement
Let’s face it, not everyone is going to ‘get along’. This could be a general clash in personality, or perhaps date back to an incident where a lack of communication or over communication left some friction. Complaints such as, ‘she doesn’t say hello,’ or ‘he never asks my opinion,’ or ’she doesn’t care about me’ may cause frustration and fracture relationships at work, but they don’t always amount to proven exclusion or harassment. Indeed, these sorts of complaints are often from employees who feel unheard or under-acknowledged, while leaders may see the employee as being needy and demanding.
When these behaviours persist, grievances can follow, needing a factual investigation. We often find that such behaviours are often not found to be misconduct, unless they result in other inappropriate behaviour such as unauthorised absenteeism, failing to follow instructions or frequent mistakes.
How to improve working relationships: Investigations can certainly help identify whether interpersonal differences and a lack of engagement amount to a breach of policy or not. However, use of mediation or coaching can promote productive and respectful discussions to help employees manage strategies for differences and understand acceptable behaviour at work. If someone is failing to collaborate to the detriment of the team, it may need style correction, coaching, a performance discussion or feedback, but it’s still unlikely to be misconduct.
3. Swearing in the workplace
It’s not unusual to experience colourful language within workplaces in Australia, however when swearing is directed at another person (employee, management or customer) and used repeatedly in an aggressive manner, this behaviour can cross the line from inappropriate to serious misconduct. Indeed, many workplaces have Respectful Workplace Policies and codes of conduct, which directly relate to swearing in the workplace. Swearing used during a heated disagreement, particularly when threatening or discriminatory, is often a serious breach of company policy. However, contrary to popular perception, not every instance of swearing will automatically constitute misconduct. The intent, team culture, who it is directed towards, as well as how it is received, will play an important role – context matters.
Case study: A cuss word was used in frustration during a team meeting. The comment was aimed at the manager, who was already managing the team member’s underperformance. Offended and angry, the manager went straight to HR, calling for immediate disciplinary action. On paper, the case looked simple. The company’s policy was clear: using derogatory language amounted to misconduct. But as the investigation unfolded, things weren’t so black and white. Team members described the meetings as ‘colourful.’ Swearing, they said, was part of the team’s normal way of communicating – even the manager occasionally joined in. There’d been no training on standards of behaviour and no effort to correct the pattern. Over time, the boundary had blurred due to the prevalent practice. The investigator concluded that while the language didn’t meet professional standards, it couldn’t reasonably be treated as misconduct. The workplace culture itself had allowed the behaviour to take root.
4. Poor performance or not meeting KPIs
Not hitting targets, missing deadlines or underdelivering on expectations can be frustrating for managers but they also shatter the confidence of the employee. Sadly, it is common to see complaints from employees being performance managed, as complex emotions from complainants make it hard to objectively separate difficult performance conversations from a perception of unfair treatment, bullying or harassment. It is also a common perception that all leaders know how to lead. The reality though is that leaders are also emotional people and can lack the skills to have effective performance conversations, leading to performance feedback not being heard clearly. However, poor leadership is not a crime!
Performance issues that have been raised through verbal or documented feedback or better still, with a documented performance improvement plan, rarely meet the definition of poor behaviour and do not breach bullying or harassment policies, even in cases of poorly delivered feedback. Such conversations can be considered reasonable management action and are not taken as poor conduct. Having said that, complaints may still need to be formally investigated to come to this conclusion, as separating facts from emotions requires deep diving.
How to prevent performance management from looking like harassment: Ensure that feedback is documented, delivered respectfully and outlines expectations objectively. In the case of verbal feedback, managers should consider maintaining file notes of their discussions and seeking help from a trusted advisor, their line leader or an HR business partner.
5. Exercising workplace rights
Employees have a legal right to exercise their rights under the National Employment Standards which cover all employees in Australia. Sometimes, leaders become frustrated with persistent and litigious requests from employees, absenteeism issues, a perceived threat of legal action for alleged breach of their rights, refusing to work outside nominated hours, or simply asking too many difficult questions. Leaders become tempted to jump to conclusions about disciplinary action without objectively assessing whether the request is a protected right under the Act.
During workplace investigations, we find that use of a demanding, persistent or accusatory tone from an employee can lead to a perception of insubordination and inciting negativity. However, several common matters provide protection from disciplinary action such as asking for flexible working arrangements, taking leave (including some forms of unpaid leave), asking questions about pay and conditions, or refusal of a task that is perceived as unsafe. They may even state that the task requested is outside of their contracted employment. Some managers may misread these legitimate actions as an act of defiance or a lack of loyalty, particularly if the way the questions have been asked is emotive and the tone used is accusatory.
Reality check: These behaviours are not misconduct, although persistent threat of litigation from employees or using an accusatory tone to ask questions can be difficult for leaders to manage. Acknowledgement of the business issues arising from the conduct (if any) may need to be noted and matched against workplace policies that define the acceptable standards.
So, When Is It Misconduct?
To determine whether an issue constitutes misconduct, ask:
⦁ Was there a breach of a policy, procedure or contractual terms?
⦁ Did the behaviour cause harm (physical, financial, emotional or reputational) to others or the business, regardless of intent?
⦁ Was it reckless or negligent?
If the answer is no, you may be dealing with issues such as a performance or disengagement – not misconduct.
Why This Matters
Misclassifying a complaint as misconduct can lead to disproportionate disciplinary action and could expose the business to claims of unfair dismissal or adverse action. Conversely, failing to address true misconduct sends the wrong message to the team.
The key is to respond to any employee complaints in a proportionate and fair way, based on the facts. Every situation is different, but taking a proactive approach to friction, conflict and poor performance, having clear and demonstrated policies and procedures and ensuring that actual practices match the policy intent will go a long way to creating the culture that will develop a positive and engaged workforce.
It’s easy to jump to conclusions when complaints arise, but by taking a measured, informed approach and seeking professional HR guidance when in doubt, employers can handle complaints effectively while maintaining fairness and compliance.
Need help navigating complex workplace complaints?
Meena at Central HR can help you distinguish between misconduct, performance issues, and everything in between. Reach out for practical, compliant and compassionate HR support.
