Workplace misconduct falls into two categories: gross and general. While general misconduct is a problem for employers, gross misconduct is a reason for swift disciplinary action, usually dismissal. As a small-business owner, make sure you understand that the burden of proof is on the employer when firing someone for gross misconduct. Keep accurate records in human resources files and document everything related to the behavior.
Forms of Misconduct
(1) Gross Misconduct
Gross misconduct is an act, often but not always considered illegal, performed by an employee. The act is serious enough to warrant an immediate firing – legally referred to as being “summarily dismissed.” The employee might be dismissed without notice or pay in lieu of notice even for a first offense. Even if the employer is justified with quick dismissal, firing someone immediately may result in an employment complaint against the company. It is important for employers to follow protocol, document all steps, and state the company’s standard policy for gross conduct dismissal. The employee handbook should have a clearly defined misconduct section that reviews what is considered a gross misconduct offense.
Examples of Gross Misconduct
Because the law is subject to interpretation, it is important to outline the most egregious misconduct examples that lead to dismissal. While the list may not be complete, it should cover the most common gross misconduct acts.
- Theft and Fraud: This offense includes stealing anything that is office property, merchandise or stock. It could also be stealing from customers or co-workers. Intentionally violating nondisclosure agreements and releasing confidential information for public use are also examples of theft and fraud.
- Damage to Property: Accidents happen, but if an employee intentionally and aggressively damages company property, the action is considered gross misconduct. This also covers gross negligence to property.
- Breach of Safety Protocol: Failure to follow protocol to ensure the health and safety of all employees including the employee in breach of protocol. This might include failure to lock up prescription medications or smoking near flammable items.
- Offensive Behavior: This includes behavior such as threats to self and others, physical fights, bullying or harassing actions such as stalking.
- Drug and Alcohol Use: Buying and selling drugs during work shifts and on company property as well as being under the influence of drugs and alcohol leading to serious impairment are reasons for potential dismissal.
If an employee has violated the rules and is found to be in gross misconduct of company or legal policies, the dismissal needs to be “fair,” which means that the employer has reasonable grounds, investigated the matter, and genuinely believes there has been misconduct of this nature.
(2) General Misconduct
General misconduct is not egregious, meaning it isn’t an intentional act to harm the company or another person. General misconduct, also called simple misconduct, is not usually a situation in which a person is summarily dismissed on the spot.
Examples of general misconduct include insubordination, chronic tardiness or absences, inappropriate or rude comments to co-workers or customers, or misrepresenting job application data. Employers must document instances of general misconduct in the employee’s file and provide the employee with a written warning that serves as proof of notice should the situation escalate beyond a single instance.
Handling of Misconduct
Dealing with employee misconduct issues can be tricky even for the most seasoned business owner. But, if you have an employee who’s not meeting expectations, or is not behaving in an appropriate way, you must deal with the issue head-on and make a plan to improve it.
Of course, there are varying degrees of employee misconduct, so how you deal with the issue head-on depends to some extent on the severity of the matter.
Misconduct is a wrongful act with intention on the part of the employee. It relates to conduct which is inconsistent with the discharge of the employee’s duties and includes error and omission.Misconduct, when reported, remains an allegation until proven. The Company has to prove the misconduct on a balance of probabilities.
It is therefore imperative that disciplinary action is properly carried out to ensure that action (s) taken including termination do not lead to costly legal costs, challenge on time and resources of not only the employer but also the employee and Union.