McCarthy Attorneys Inc

Misconduct in the workplace

Misconduct in the workplace

Workplace misconduct is when an employee intentionally or negligently disregards the rules of the workplace. Workplace disciplinary codes and policies usually set out the types of behaviour which will be considered unacceptable and further regulate the conduct of employees as a whole. 

To minimise such misdemeanours, every workplace should have its own policies setting out the types of conduct that will be regarded as unacceptable; and a disciplinary code that governs the procedures to be followed in the event of such misconduct. 

In the absence of such codes and policies, the following general forms of conduct will constitute misconduct, irrespective of the type of workplace: 

  • Absent without leave or permission 
  • Reporting late for duty 
  • Reporting for duty whilst under the influence of alcohol / drugs 
  • Negligence / gross negligence 
  • Dishonesty 
  • Theft 
  • Insubordination 
  • Insolence  
  • Willful damage to the property of the employer 
  • Willful endangering of the safety of others 
  • Physical or sexual assault on the employer, a fellow employee, client, or customer 
  • Harassment  

When disciplining or ultimately dismissing an employee for misconduct, Schedule 8 of the Labour Relations Act of 1995, the Code of Good Practice: Dismissal (the “Code”), guides one to consider whether a dismissal for misconduct is unfair.  

Section 4 of the Code states that dismissing an employee for a first offence is generally not appropriate unless the transgression is of such seriousness and gravity that it “makes a continued employment relationship intolerable”.  

A distinction should be drawn between simple misconduct, such as smoking in a non-smoking area, and gross misconduct, such as theft or assault. Minor offences can be corrected and do not require termination on the spot, and a simple warning or counselling of an employee may suffice. Gross misconduct, on the other hand, will warrant an immediate disciplinary enquiry and termination (“summary dismissal”) if found guilty because of its highly reprehensible nature and its breach of the trust relationship with an employer. 

Regardless of the misconduct form, each case must be decided on its merits.  

If you have any questions about other Labour or Land issues, contact McCarthy Attorneys Inc. on (033) 266 6170 or  via email