"Gross Misconduct in the Workplace"
I can define Gross Misconduct as a proven crime in connection with employment. There is no doubt in my mind that it is serious enough and repulsive to require dismissal. Oxford Dictionary defines misconduct as improper behaviour and gives adultery as an example but I have added a lot more acceptable examples in this presentation.
In my four decades of practice as a human resource director with over a thousand employees in twenty locations and with four subsidiary companies I did not come across any employee who we could dismiss because of gross misconduct. There were several reasons for this excellent employee behaviour.
Firstly, the guidelines in our personnel or disciplinary policies were precise and clear for the employees and their respective managers to fully understand the adverse consequences of such misconduct if it ever occurred.
Secondly, our management system was geared to various checks and balances and there were various controls in place to nip such misbehaviour in the bud.
Thirdly, our training and development programs were geared to addressing all types of misconducts, gross or general, at all our work locations.
Of course, the regular social and cultural meetings, gatherings and the get together with various professional, ethical and motivational lectures, speeches and appropriate presentations developed a deep sense of loyalty, a greater sense of camaraderie and teamwork among the workers. In fact I continually noticed a feeling of brotherhood among the cross section of the employees and there was a very high degree of mutual respect in and among the hierarchy.
However, it was one of my greatest disappointments to get a false report of gross misconduct about one of my very loyal workers. A diamond ring was reportedly missing from the safe and the only person who had the key to the safe was this employee. The auditors alleged that the item was stolen by the person who had the keys because neither the shop nor the safe was broken into. I started the investigation and to my dismay and surprise I found him totally innocent because two days before the ring was reported missing or purportedly stolen by the employee, the previous manager in charge had locked the item in another more secure safe known only to him and went away on leave for three weeks. Since then I have always been very careful about any reports of gross misconduct unless of course there are specific eye witnesses and proofs of such adverse behaviour.
A recent example of dismissal on the grounds of gross misconduct was the BBC case of Jeremy Clarkson who was responsible for an “unprovoked physical and verbal attack” that left a colleague bleeding and seeking hospital treatment.
Tymon was “subject to an unprovoked physical and verbal attack” by Clarkson, during which he was “struck, resulting in swelling and bleeding to his lip”. The attack “lasted around 30 seconds and was halted by the intervention of a witness”, and Tymon “offered no retaliation”. But the later effect of this episode is noticeably troublesome when other colleagues of Jeremy Clarkson have left the job to protest against his sacking giving us a feeling that this behaviour was not a gross misconduct.
The term “gross misconduct” has a variety of interpretations in the business world, particularly as the term applies to employment law. The subjective term is typically defined in detail by human resources organizations and is based on individual definitions. In general, gross misconduct in the workplace is characterized as an objectionable action that is willful and cannot be described as a mistake or an act of negligence. It is deliberate act of misbehaviour.
I have always viewed gross misconduct from two angles. Firstly, the employers who are not able to manage their employees well can often take some blame for the unacceptable behaviour of their employees. However, this does not grant any freedom to any employee to misbehave. In fact there is no excuse for anyone at any work place to be an alien to commit any criminal activity which reveals gross misconduct. The fault lies in employees who deviate from normal, professional and ethical conduct at their respective workplaces. Lack of leadership, inadequate training, poor managerial control or any such adverse administrative role should not ever become a valid reason for gross misconduct by any employee.
Some accepted descriptions of gross misconduct include blatant disregard for the safety of others; deliberate acts of violence or hostility; attempts to financially defraud a company; significant levels of gross negligence and insubordination; blatant rudeness and use of abusive language; drunkenness; offsite misconduct and dishonesty through falsification of documents or other forms of misrepresentation. Generally, most criminal offenses that happen in the workplace are defined as gross misconduct. This includes murder, sexual assault and embezzlement. Criminal gross misconduct is typically identified and defined in the legal system and a court of law.
It is understandable that the legal world and the courts view these acts on case by case basis. However, whoever is the determinant, the differentiation between willful and negligent behavior at workplace has to be looked at very seriously not only because such activities are of criminal nature but because they are harmful for the overall prestige of the business organization and our human resource practices.
On the other hand we cannot compare gross misconduct with any acts of poor performance, minor errors of judgment, or negligence of duty at workplace because these are slips that can be improved and controlled by training and development programs and rehabilitation intervention.
In my consultancy services as a HR practitioner I have always advised employers to try to make an exhaustive list of all the examples of gross misconduct they can possibly think of in their disciplinary or personnel policy document or staff handbook. Ultimately whether or not an offence is gross enough to amount to gross misconduct will be a decision of the management.
A lot of employers nowadays place a non-exhaustive list of examples of gross misconduct in their staff handbooks and disciplinary policies and procedures. That list often includes:
Many employers usually extend this list to cover matters specific to their own organization which are important to them, for example lending a security pass to colleagues, if security is particularly important. One vital point that needs to be considered when drawing up these guidelines, is the current laws of the country relating to employment.
I have experienced that firing an employee who has grossly misbehaved can be one of the toughest business decisions we have to make, so we do not want to make it worse by getting it wrong and opening ourselves up to various legal and tribunal claims. This is possible if the employers are unsure of the procedures to be followed when effecting a fair dismissal. Therefore, it would be advisable to always study the relevant regulations to be sure than sorry.
General misconduct tends to cover minor misdemeanours and misbehaviour that would not warrant dismissal for a first offence, but may lead to a verbal or written warning. Continued misconduct of this nature can result in dismissal, subject to the proper procedures being followed. Gross misconduct, as the name suggests, is much more serious. This can take many forms, ranging from offences which jeopardize the functioning of a business, or the safety and well being of the staff.
I emphasize the need for the employers to draw up proper and non exhaustive guidelines to differentiate misconduct and what constitutes gross misconduct to give the employees a clear framework so that they realize when they have overstepped the mark. These should be the important part of the personnel policies that are given during induction or regularly communicated to the staff.
The following were listed in one of well known HR managers of an SMI and these were the top 10 reasons they cited for summarily dismissing and firing an employee immediately:
It is advisable to instigate disciplinary proceedings where dismissal may be a possible outcome but the correct procedures need to be taken. No decisions should be taken until a full investigation and disciplinary hearing has been conducted, and the employee has had the opportunity to put forward their case.
Some employers take the risk and conduct summary dismissal on any count of gross misconduct that is outlined in their guidelines. Some even do not wait for the courts to finalize their decision for the criminal of their crime.
I believe that a dismissal for gross misconduct will only be fair if, at the time of the summary dismissal, the employer:
Conclusion
The present employment field has come a long way from the old days of autocratic hire and fire. The laws have changed or modified and unionism has embarked on employee protection or the legal firms have begun to stand in between the employees and employers to bring about various types of litigations.
Another misconception about gross misconduct is that employees cannot be dismissed if their employer cannot produce indisputable evidence of their wrong doing. This mistake is often made by employees facing a criminal trial at some point in the future and their employer decides to dismiss them before their criminal case is heard.
Whatever is the case and scenario at workplace for gross misconduct, the procedures that are legislated should be followed and if actions are taken after proper investigation then there will always be harmony in the business world.
Gross misconduct is misconduct which when objectively considered, is capable of destroying the trust and confidence in the employee. It covers obvious serious misconduct such as dishonesty or violence as outlined before, but in any such cases, as long as an employer can clearly show
Then the employer is entitled to treat it as an act of gross misconduct without any problems and the employee will have to accept the consequences of the unacceptable action.