Misconduct in the workplace

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MISCONDUCT IN THE WORKPLACE

Misconduct in the workplace, if not properly and fairly managed, can become a serious problem in the workplace.

Typical examples of misconduct are theft (gross dishonesty), fraud (gross dishonesty), assault, intimidation, insubordination, insolence, unauthorised absenteeism, failing to report an intended absence, consumption of alcoholic beverages on company premises, arriving at work under the influence of alcohol or a narcotic substance and sexual or racial harassment, to name but a few.

Misconduct committed by an employee is a ground in law that justifies an employer terminating the contract of employment.  However, for a dismissal to be fair it must be both procedurally and substantively fair:

  • For a dismissal to be substantively fair it must be for a valid reason. The facts of each individual case will determine whether the dismissal is for a fair reason and whether dismissal is the appropriate sanction.
  • For a dismissal to be procedurally fair it must be affected in a procedurally fair manner. An employer must ensure that a fair procedure has been followed.

The employer must adhere to the principle of progressive discipline in an attempt to correct the employee’s behaviour:

  • verbal warnings for minor transgressions (valid for *3 months);
  • written warnings for consistent misconduct (valid for *6 months); and
  • final warnings for persistent misconduct (valid for *12 months).

 

*The length of time warnings should remain valid are suggestions only.

 

Dismissal should be considered as a sanction of last resort.

DISCIPLINARY ENQUIRY

The chairperson of a disciplinary enquiry must, insofar as it is possible, be a person who is able to make an independent decision based on the facts presented at the enquiry.

The chairperson must consider whether:

  • there was a rule prohibiting the alleged misconduct;
  • the rule was valid and/or reasonable;
  • the employee was aware of the rule or should have been aware of the rule; and· the employer has been consistent in applying the rule;
  • the accused employee broke the rule of conduct in the workplace.

Once the chairperson has made a determination about whether or not the employee is guilty of the offence the chairperson must consider the appropriate sanction to impose.  The chairperson must consider whether dismissal is an appropriate sanction or whether a less severe sanction, such as a final written warning, would be appropriate.

*This information does not constitute legal advice and should not be acted or relied upon without consulting and seeking the advice of an attorney.

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