Omar Bennett
Workplace misconduct can be broadly categorized into two types: gross and general. While general misconduct is a concern for employers, gross misconduct is a more serious issue that can have negative consequences for the well-being of a business and often leads to swift disciplinary action, including dismissal. Gross misconduct is typically defined as an intentional act that threatens the safety, health, and reputation of colleagues and the organization. However, the specific definition of gross misconduct may vary across organizations and states, and it is important for employers to clearly outline expected behaviors and the consequences of misconduct in their employee handbooks or contracts. On the other hand, general misconduct includes behaviors such as insubordination, chronic tardiness, inappropriate comments, or misrepresenting job application data. Employers should document instances of general misconduct and provide written warnings to employees. In the context of work, what constitutes being fired for misconduct depends on the type of misconduct, the severity, and the organization's policies and protocols for handling such incidents.
| Characteristics | Values |
|---|---|
| Misconduct vs. Poor Performance | Misconduct is a behavior issue, and poor performance is a competence issue. |
| Misconduct | Behavior that violates a company's code of conduct or policy. |
| Gross Misconduct | An intentional act that negatively impacts a business. |
| Ordinary Misconduct | Unintentional acts that do not warrant dismissal but may do so if the behavior persists. |
| Harassment | Offensive language or gestures, physical abuse, threatening behavior, intimidation, humiliation, and unwanted gifts. |
| Theft | Taking office supplies or other company property. |
| Fraud | Misuse of company funds. |
| Insubordination | Refusal to obey reasonable orders from a manager or supervisor. |
| Tardiness | Chronic lateness or "no show, no call". |
| Absenteeism | Chronic absences. |
| Inability to Perform | Failure to meet employer standards or sales quotas. |
| Gross Negligence | Failure to perform work as required, resulting in substantial loss to the employer. |
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What You'll Learn
Gross negligence
To be considered gross negligence, the following elements must be present:
- The employer's rules require the work to be performed in a certain manner, and the employee is aware of these rules.
- The employee knows that failure to perform the work as required could result in substantial loss to the employer.
- The employee has no logical and reasonable explanation for the failure to perform the work as required.
It is important to distinguish between misconduct and gross misconduct. Misconduct is typically unintentional and not serious enough to warrant immediate dismissal. On the other hand, gross misconduct is regarded as an intentional act that can have negative outcomes on the well-being of a business.
In the case of Adesokan v Sainsbury's Supermarkets Ltd [2016], the English Court of Appeal held that a senior employee's failure to correct a serious mistake amounted to gross negligence and constituted gross misconduct, resulting in a fair dismissal.
To ensure fair and consistent practices, employers should outline gross misconduct and its consequences in employee handbooks. When dealing with potential cases of gross negligence, employers should conduct thorough investigations, obtain the employee's side of the story, and consult with their legal team to handle the situation appropriately and in accordance with ethical and legal guidelines.
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Insubordination
To be considered insubordination, there are typically three factors that must be present: the employer gives an order, the employee acknowledges the order, and the employee refuses to carry it out. This refusal can be verbal or non-verbal, such as an unreasonable delay in completing the task. It is important to note that the order itself can take various forms, including verbal directives, written instructions, duties outlined in a contract, or implied duties where no formal job description exists.
While insubordination often involves a clear refusal to follow instructions, it can also be more subtle. For example, an employee may verbally agree to follow an instruction but then intentionally delay or fail to complete the task. Additionally, disrespectful remarks, gestures, or other insolent behaviours may accompany insubordination, but this is not always the case.
It is important to differentiate insubordination from a valid refusal. Employees may have legitimate grounds to decline an instruction if it is unlawful, unsafe, unethical, or outside their contractual responsibilities. Additionally, when addressing insubordinate behaviour, employers should consider the workplace culture and circumstances surrounding the incident. For example, if cursing is common in the workplace, the employer would need to assess whether the language used by the employee was unusual enough to be considered abusive.
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Theft
When an employee is accused of theft, it is essential to follow proper procedures and gather sufficient evidence to support the allegations. Employers should consult with legal professionals to ensure they handle the situation appropriately and in accordance with ethical and legal guidelines. Failure to do so may result in wrongful termination claims if the employee is wrongfully accused or if proper procedures are not followed.
Employees who are accused of theft have certain rights and should consult with employment lawyers to understand their legal options and protect their rights. A lawyer can guide them through the investigation process and help resolve the issue with their employer, whether they committed the theft or were falsely accused. In some cases, employees may have a claim for wrongful discharge or take legal action against their employer for false accusations.
The consequences of being fired for theft can be significant. Former employees may face challenges in finding new employment, especially in certain industries or positions of trust. Background checks and references may disclose the reason for termination, impacting their future career prospects. It is important for individuals to seek legal advice and carefully consider how to address this issue in future job applications and interviews.
To prevent theft in the workplace, employers should have clear policies outlining gross misconduct, including theft, and the consequences of such actions. Employee handbooks should communicate these policies to all staff, setting expectations and deterring potential offenders. Additionally, employers should ensure that managers and employees are well-informed about acceptable behaviour and provide training to promote ethical decision-making and awareness of the potential repercussions of misconduct.
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Sexual harassment
Misconduct in the workplace refers to behaviour issues, rather than competence issues. In the case of sexual harassment, this constitutes a form of misconduct that can result in an employee being fired.
To qualify as a hostile work environment, the conduct must be offensive not only to the employee but also to a reasonable person in the same circumstances. For instance, a male employee complimenting a female colleague's haircut and opening the door for her may not be considered harassment by the average person. However, if this same male colleague frequently asks the female colleague to join him for dinner to discuss work-related matters, and these conversations turn personal, it could constitute sexual harassment. If this behaviour escalates to include staring at the female colleague for extended periods, sending late-night texts commenting on her appearance, and blocking her exit when she tries to leave, it would certainly create a hostile work environment.
Employers are responsible for providing a work environment free from harassment and discrimination and must take prompt action to address any reported incidents, investigate the claims, and prevent further occurrences. Failure to do so can result in legal consequences.
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Discrimination
Misconduct in the workplace refers to behaviour issues, while poor job performance relates to competence issues. For instance, an employee who commits theft and is terminated is guilty of misconduct, whereas an employee who works hard but cannot meet sales targets exhibits poor performance.
The Equal Employment Opportunity Commission (EEOC) protects employees from discrimination based on race, colour, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, disability, age (40 or older), or genetic information. For example, denying a reasonable workplace change due to an employee's religious beliefs or disability is considered discrimination. Similarly, asking improper questions about or disclosing an employee's genetic or medical information is discriminatory.
Age discrimination involves employment decisions influenced by a person's age rather than their merit or qualifications. Gender discrimination, on the other hand, manifests as unequal treatment or consideration based on gender identity, resulting in unequal pay, stereotyping, or sexual harassment. Race or national origin discrimination involves unfair treatment, harassment, or denial of opportunities based on an individual's racial or ethnic background.
To prevent discrimination, organisations should establish clear anti-discrimination policies that explicitly state their commitment to a discrimination-free workplace. These policies should define prohibited behaviours, provide examples, and outline consequences for violations. It is also crucial to encourage reporting and support systems, ensuring employees who come forward are protected from retaliation and provided with appropriate support.
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Frequently asked questions
Misconduct is a behaviour issue, whereas poor performance is a competence issue. For example, an employee who steals from the company is displaying misconduct, whereas an employee who is working hard but is not capable of meeting their sales quotas is displaying poor performance.
Gross misconduct is an intentional act that can negatively impact a business. It is typically an immediate firing offence and may be considered illegal. Examples include sexual harassment, violence, theft, and fraud.
Ordinary misconduct is typically unintentional and not serious enough to warrant immediate dismissal. However, if the behaviour persists, dismissal may become necessary. Examples include insubordination, chronic tardiness, absenteeism, and rude comments to co-workers or customers.
