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Performance management and misconduct: your questions answered

By CCIWA Editor 

CCIWA’s experienced and innovative legal practice Business Law WA specialises in workplace relations and employment law matters for businesses of all sizes.

Our team of specialised lawyers can assist your business with the workplace law changes, ensuring your organisation is legally compliant, safe and productive.

Here are some of this month’s frequently asked questions asked by our Members about performance management and misconduct, answered by our Business Law WA team.

Q: Do we have to do a disciplinary process, or can we just terminate after an investigation into employee misconduct?

A: An employer must have sufficient evidence to support a decision to discipline or terminate an employee for misconduct, often requiring an investigation. After an investigation, the employer decides on disciplinary action based on the findings and relevant company policies.

If an employee commits serious misconduct, an employer has a right to summarily dismiss the employee. Serious misconduct generally constitutes an act by an employee so serious that is strikes at the heart of the employment relationship so as to sever it irrevocably. There is no fixed rule of law defining what constitute serious misconduct, and this will depend on the relevant legislation, common law and any relevant company policies.

If the misconduct is not severe, termination with notice paid in lieu or other disciplinary actions may be appropriate. Factors to consider include:

  • Investigation outcome;
  • Employee’s response;
  • Alternatives to termination (e.g., transfer, further training, opportunity to improve, re-organisation of duties, etc.);
  • Disciplinary history;
  • Length of service;
  • Probational status; and
  • Impact of misconduct on the business.
Q: Can we dismiss an employee for out-of-hours conduct?

A: Addressing out-of-hours conduct is complex and dependent on the specific circumstances.

An employer can only extend supervision over the private activities of an employee in exceptional circumstances and there must be a relevant connection between the out-of-hours conduct and the employment relationship.

The Fair Work Commission will generally rely on the following principles to assess whether an employee’s out-of-hours conduct would warrant termination from employment:

  • The conduct likely causes serious damage to the employer-employee relationship; or
  • The conduct damages the employer’s interests; or
  • The conduct is incompatible with the employee’s duties.

There are many factors to consider in determining the scope of the employer’s ability to supervise, issue directions regarding, or act on, an employee’s out-of-hours conduct, including:

  • The nature of the employment relationship; and
  • The statutory, contractual and other legal obligations of the employment relationship.

Employers should have clear evidence and possibly investigate before taking disciplinary action.

Q: An employee has used our company equipment for personal use on the weekends – can we do anything about this?

A: An employer’s ability to act regarding an employee’s personal use of company equipment depends on company policies, contractual and implied or express conditions about the equipment use.

If an employee uses equipment without permission, the company should first discuss this with the employee and warn them that unauthorised use may lead to disciplinary action.

If use violates a policy or contract, disciplinary action may be justified. Clear policies on personal use of company equipment are essential. Employers should inform employees of misuse, issue warnings if necessary, and then take disciplinary action considering the situation.

Generally, an employee is only obliged to follow directions (including those contained in a policy or similar) that are both lawful and reasonable. Refusal to follow a lawful and reasonable direction may justify the employer taking disciplinary action.

The employer should take steps to first inform (or remind) the employee of their inappropriate conduct, issue any warnings if appropriate, and then, if necessary, take appropriate disciplinary action.

Q: An employee has failed to wear correct PPE on multiple occasions – what are our options to address this?

A: Employers must have clear guidelines, policies and procedures on personal protective equipment (PPE), including which tasks require PPE and what forms.

Firstly, the employer should inform (or remind) the employee of their obligations, ensure they are aware of the appropriate policies and guidelines, and provide training if necessary.

Failure to wear PPE may expose the employee, other employees and the company to health and safety risks and breaches of work health and safety obligations.

The employer should take steps to first inform (or remind) the employee of their PPE requirements, provide training and issue any warnings if appropriate.

Persistent refusal to wear PPE should result in disciplinary action, up to termination if necessary.

Each incident and employer action should be recorded, including any action taken by the employer in addressing the employee’s failure to wear the correct PPE.


Please note, this information is general in nature and should not be considered legal advice.

If you have any questions about performance management and misconduct, contact our Employee Relations Advice Centre on 9365 7660 or email [email protected].

Or, if you require legal advice and would like to speak to one of our employment lawyers, email [email protected].  

What are the rules around performance management and misconduct? Our experts answer your FAQs.

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