Let cooler heads prevail: How to determine serious misconduct

Let cooler heads prevail: How to determine serious misconduct

It can be quite shocking when someone loses their temper at work. Unless a workplace has a toxic or disrespectful culture, the importance of professional behaviour (and the etiquette it entails) goes without saying. However, as the case of Harris v The Warehouse demonstrates, it is crucial that employers respond fairly and proportionately when conflict occurs at work.

Ms Harris got into a confrontation with a customer who had brought her dog instore. Ms Harris first asked the customer to remove the dog from the store but was ignored by the customer.  Ms Harris then repeated the direction, more assertively, but still the customer did not remove her dog. At this point Ms Harris described the customer as “arrogant” to other staff members. The customer then went to leave, and Ms Harris followed customer out into the foyer and continued to reprimand her about having her dog in the store.   After investigation, her employer decided that Ms Harris’ actions amounted to serious misconduct for threatening and intimidating behaviour towards the customer. 

When analysing this issue, the Employment Court examined the meaning of “threatening” and “intimidation” closely. It held that to “threaten” somebody meant “to try to influence (a person) by menaces; to utter or hold out a threat against; to declare (usually conditionally) one’s intention of inflicting injury upon or to menace”. Similarly, the action of intimidation required “to render timid, inspire with fear; to over-awe, cow” or  “to force to or deter from some action by threats or violence”.  

When the actual meaning of these words was considered, it was clear that Ms Harris’ behaviour did not fall in these extreme categories. Although Ms Harris’ conduct was unwarranted, she had not made threats to the customer or made her fearful.  The Court held that a better description of her behaviour was “rude” or “verbally aggressive” which amounted to misconduct rather than serious misconduct. 

Accurately categorising potential misbehaviour from the outset can help employers reach fairer decisions and mitigate their risk of a personal grievance claim. But employers can often wonder how they are to determine serious misconduct. A good starting place is as follows. When conflict erupts at work, after the initial shock it is important to take a step back.  Consider carefully, if proven- how serious is the behaviour in reality? On a scale of mild rudeness at one end to stand-over threats of violence at the other, where does the incident truly sit? Was the alleged misbehaviour utterly reprehensible, or perhaps just a moment of poor judgment? Overall, when faced with conflict at work, it is truly better to let cooler heads prevail. 


If you have any questions or queries in relation to this topic, please get in touch with the Watermark team directly. We are happy to advise you.

Kylie Hudson