Gross misconduct is a serious violation that fundamentally breaches the trust and confidence required for the employment relationship. It often justifies summary dismissal, meaning the employee can be dismissed without notice or pay in lieu of notice. This type of misconduct can severely impact the workplace environment and the company’s operations.
The Code of Good Practice:
Dismissal provides a framework for employers to handle dismissals fairly and justly, focusing on three primary aspects: misconduct, poor work performance, and incapacity due to ill health or injury. Here's a summary:
Introduction
Purpose: The code offers general guidelines for dismissals related to conduct and capacity. Each dismissal case is unique, and deviations from the norms might be justified based on the context.
Collective Agreements: The code respects the primacy of collective agreements, meaning it is not a substitute for disciplinary codes that are part of these agreements or the outcome of joint employer-employee decision-making.
Mutual Respect: Employers and employees should treat each other with mutual respect, balancing employment justice with the efficient operation of business.
Fair Reasons for Dismissal
Unfair Dismissal: A dismissal is considered unfair if it lacks a fair reason or isn't conducted according to fair procedures.
Evaluation of Fairness: Fairness is determined by the specifics of the case, the appropriateness of dismissal as a penalty, and the adherence to fair procedures.
Legitimate Grounds for Dismissal: Dismissal might be justified on three grounds:
Conduct of the employee.
Capacity of the employee.
Operational requirements of the employer’s business.
Automatically Unfair Dismissals: Dismissals are automatically unfair if they infringe on fundamental employee rights or involve discrimination (e.g., due to pregnancy, or lawful strike participation).
Proving Fairness: If the dismissal isn't automatically unfair, the employer must demonstrate that it was due to the employee's conduct or capacity or was based on operational requirements.
Misconduct
1. Disciplinary Procedures:
Employers must establish clear and consistent rules of conduct.
Progressive discipline is endorsed, where minor violations lead to corrective actions, such as counseling or warnings, and serious or repeated violations might lead to dismissal.
2. Dismissal for Misconduct:
Dismissal is generally reserved for serious misconduct, like gross dishonesty, damage to property, or physical assault.
When deciding on dismissal, factors like the employee's service length, disciplinary record, job nature, and the circumstances of the incident should be considered.
Consistency in applying disciplinary actions is crucial.
Fair Procedure
Investigation: Employers should investigate grounds for dismissal before proceeding, allowing the employee to respond to allegations.
Consultation: In cases involving union representatives, the employer must consult the trade union.
Notification: If dismissed, the employee should be informed of the reasons and reminded of their rights to dispute the dismissal.
Incapacity
1. Poor Work Performance:
Newly hired employees can be placed on probation. If performance issues arise, the employer should provide evaluation, training, and guidance.
Dismissal for poor performance should only occur after these steps have been taken, and if the employee fails to improve.
2. Ill Health or Injury:
For temporary incapacity, the employer should assess the situation and consider alternatives to dismissal.
For permanent incapacity, the employer should explore options like alternative employment or job adaptation.
The employer has a greater duty to accommodate incapacity if it results from work-related illness or injury.
Guidelines for Determining Fairness
Misconduct: Consider if the rule was valid, if the employee was aware of it, if it was consistently applied, and if dismissal was an appropriate sanction.
Poor Work Performance: Assess whether the employee was aware of performance standards, given a fair opportunity to meet them, and if dismissal was an appropriate response.
Ill Health/Injury: Evaluate the employee's capability, the possibility of adapting to work circumstances, and the availability of suitable alternative work.
Examples of Gross Misconduct
Theft and Fraud:
Stealing Company Property: This includes not only physical items like equipment or money but also intellectual property such as trade secrets or proprietary information.
Falsifying Records: Manipulating financial statements, expense reports, or any company documentation for personal gain or to deceive the company.
Physical Violence:
Engaging in Fights: Physical altercations with colleagues, clients, or even third parties while representing the company.
Threatening Behaviour: Any form of intimidation or threats of violence, whether verbal or physical, towards others in the workplace.
Gross Negligence:
Ignoring Safety Procedures: Failing to adhere to safety protocols, leading to accidents or endangering the lives of others.
Substandard Performance: Consistently failing to perform duties to the required standard, resulting in significant harm or loss to the company or its clients.
Serious Insubordination:
Refusal to Follow Instructions: Deliberately ignoring lawful and reasonable instructions from superiors.
Disobeying Policies: Wilfully violating company policies or procedures, especially those critical to operations or safety.
Harassment and Discrimination:
Sexual Harassment: Unwanted sexual advances, requests for sexual favours, or other verbal or physical harassment of a sexual nature.
Bullying and Discrimination: Persistent and unwelcome behaviour that creates a hostile work environment, including discrimination based on race, gender, religion, or other protected characteristics.
Substance Abuse:
Working Under Influence: Coming to work under the influence of drugs or alcohol, particularly in roles where safety is critical.
Illegal Substance Use: Using or possessing illegal drugs on company premises.
Breach of Confidentiality:
Unauthorized Disclosure: Sharing sensitive company information with unauthorized individuals or competitors.
Misuse of Data: Using confidential data for personal gain or in a manner that harms the company.
Steps to Charge an Employee with Gross Misconduct
Step 1 - Preliminary Investigation
Gather Evidence: Collect all relevant evidence, including witness statements, CCTV footage, emails, and any other documentation that supports the allegation of gross misconduct. Ensure that the evidence is collected in a manner that maintains its integrity and admissibility.
Interview the Employee: Conduct an initial interview with the employee to gather their version of events. This is part of the fact-finding process and not yet a formal disciplinary hearing. Ensure the interview is conducted fairly and without bias.
Step 2 - Notify the Employee
Formal Charge Letter: If the investigation suggests gross misconduct may have occurred, issue a formal charge letter to the employee. This letter should:
Clearly outline the specific allegations.
Reference the incidents and evidence supporting the charge.
Inform the employee of the date, time, and location of the disciplinary hearing.
State the employee’s right to representation by a union representative or a colleague.
Inform the employee of the potential consequences if the allegations are proven.
Right to Prepare: Give the employee sufficient time to prepare their defense, in line with fair procedural requirements. This includes access to the evidence against them and the opportunity to gather their own evidence and witnesses.
Step 3 - Disciplinary Hearing
Conduct the Hearing: The hearing should be chaired by a person not involved in the investigation to ensure impartiality. During the hearing, the employee should have the opportunity to present their case, call witnesses, and challenge the evidence presented.
Consider the Evidence: The decision should be based on the balance of probabilities, meaning the evidence should show that it is more likely than not that the employee committed the misconduct. Ensure that all evidence is considered fairly and objectively.
Step 4 - Decision
Outcome: After the hearing, determine whether the employee is guilty of gross misconduct. If so, consider whether dismissal is appropriate, or if a lesser sanction, such as a final written warning, might be suitable. The decision should be proportionate to the severity of the misconduct.
Communication: Communicate the outcome in writing, explain the reasons for the decision, and inform the employee of their right to appeal. Provide clear and detailed reasons to ensure transparency and fairness.
Step 5 - Appeal Process
Right to Appeal: The employee should be informed of their right to appeal the decision. The appeal process should be conducted by a different person or panel to ensure impartiality. The employee should be given the opportunity to present new evidence or arguments in their defense.
Role of the Employers Organisation for Hairdressing, Cosmetology, and Beauty (EOHCB)
The EOHCB can play a crucial role in supporting employers through the disciplinary process:
Advisory Services: Offering advice on handling disciplinary procedures and ensuring compliance with labour laws. This includes guidance on best practices and legal requirements.
Representation: Representing employers in disputes and hearings, providing expert support and advocacy.
Training: Providing training on best practices for managing employee conduct and disciplinary procedures. This can help employers prevent issues of gross misconduct and handle them effectively when they arise.
