When you receive a complaint or report of a workplace misconduct allegation, deal with it carefully as the dismissed employee can file an unfair dismissal claim against the company for wrongful termination, and they may succeed if the Company fails to prove that the termination was with just cause and excuse. The Company will have to prove that proper procedures were followed and the legal test to satisfy termination on grounds of misconduct have been satisfied..

The test for termination on grounds of misconduct:

• whether the employer acted reasonably in thinking that the employee committed the misconduct; and
• was the misconduct serious enough to warrant dismissal.

Under Section 14(1) of the Employment Act 1955, the employer have a statutory obligation to conduct “due inquiry” before terminating an employee for misconduct. This does not mean that a domestic inquiry must be held but the employer must have investigated and reasonably thinks that the employee has committed to misconduct. 

The employee should be allowed a chance to explain themselves before the employer determines whether the misconduct has been committed. 

What should employers do when they receive a report for workplace misconduct?

1. Conduct a preliminary investigation to identify whether there is any basis for this misconduct allegation. If there is none, the case is closed.
2. Issue show cause letter to state the charges against the employee and allow the employee a chance to explain in writing.
3. The employee replies to the show cause letter.
4. The Company decides whether it is satisfied with the employee’s explanation. If it is, there is no misconduct. 
5. If the Company is dissatisfied with the employee’s explanation, it can decide whether to hold a domestic inquiry. A domestic inquiry is not mandatory but the Company should check its policies to double-check whether the policies require a domestic inquiry to be held.
6. If the Company decides that the employee is guilty of the misconduct, it can then take disciplinary action against the employee. The disciplinary action taken should be proportionate to the employee’s misconduct(s).

• Ensure that the Company properly document the alleged misconduct, in case the employee lodges an unfair dismissal claim.
• Do not punish the employee twice (e.g. warning + termination later on for the same misconduct).
• If it is a performance issue, do not issue a show cause letter or hold a domestic inquiry. Different test and procedures apply for poor performance.
• Read the Company’s misconduct policy and ensure that it is adhered to!