Legal Article - Employment Law

Employee Conduct

Conduct, as a reason for dismissal, is a very wide area. It covers everything from theft to poor timekeeping, fighting to insubordination, and disloyalty to disobedience. More perhaps than for any of the other reasons, it is very important that a proper procedure is carried out in cases of misconduct.
This will involve:

• Warnings
• Investigation of the facts consultation with the employee
• Consultation with the employee
• Appeal

Types of Misconduct

No list will ever be exhaustive. It is, however, advisable to describe the types of misconduct which will be thought of as more serious or less serious. For example, the less serious types of misconduct and where the full verbal - written - final warning procedure should be followed are:

• Poor timekeeping
• Absenteeism
• Unauthorised absence
• Abusive language
• Poor attitude
• Disobedience
• Personal appearance

This list is not exhaustive.

The types of misconduct which may be treated as serious or gross misconduct could include:

• Theft and fraud
• Violence
• moonlighting which seriously affects job performance or the commercial viability of the company
• Intentional falsification of records
• Drunkenness in clear breach of a written rule and where a serious risk to safety
May arise
• Possession of, or under the influence of drugs.

This list is not exhaustive.

In the absence of any definitive lists of what type of misconduct falls to be treated in specific ways, it is up to a company to make their own rules which they could, in the event, justify as reasonable. For example, an employee is caught smoking in a no smoking area, which under company rules, may be considered gross misconduct.

However, there is quite a difference between smoking in an area that is designated a no smoking area because it is extremely hazardous to do so and smoking in an area designated non-smoking after a workforce vote for environmental reasons. In the latter case, it is a minor offence, which would warrant dismissal only if the misconduct continues after warnings have been given.

Suspected Misconduct

It is often the case that an employer believes an employee to be guilty of misconduct but cannot prove it. This arises most often in cases of suspected theft, fraud or violence (i.e. who started the fight).

It is not necessary that an employer prove such misconduct. He must, however, be able to show that he had reasonable grounds for believing an employee to be guilty. It is impossible to have reasonable grounds unless there has been a full investigation and the employee has had an opportunity to respond to the allegations against him/her.

Misconduct Outside the Workplace

The extent to which an employer can take action against an employee in relation to misconduct that occurs outside of work is very much dependent on the circumstances of each case. To justify dismissing an employee, it would have to be shown that the misconduct was such as to affect or be likely to affect his/her work, or was such as to damage the employer’s business or affect relations with fellow workers.

For example an employee who is employed as a cashier in a petrol forecourt and in a position of trust with regard to handling money may reasonably be dismissed on conviction of defrauding his/her employer. On the other hand, an employer is unlikely to be able to justify the dismissal of a park flasher who works in a workshop and has no contact with the public.

Published: 03 Jun 2011

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