What constitutes serious misconduct?
One of the questions that our Helpline regularly receives when an employer is faced with a misconduct situation with one of their employees, is how do they decide if it is misconduct or serious misconduct. Minor misconduct offences are typically dealt with at a lower level. They only become a formal disciplinary matter if the problem keeps happening. Serious misconduct however generally goes straight to a disciplinary process and the outcome could be as serious as dismissal.
Misconduct is defined as any form of wrongdoing that is of a more minor nature. Usually it will involve deliberate wrongdoing, but not always. Examples include (but are not limited to): lateness, being careless or negligent, using offensive language to others, failure to follow reasonable instruction, the breach of an employer’s internet use or social media policy and less serious breaches of health and safety.
Serious misconduct involves offences that are very serious in nature. It consists of situations where an employee’s behaviour is such that you feel threatened, unsafe or the act results in a major loss of trust or confidence in the person. Common examples include (but are not limited to):
- Dishonesty of any kind, including falsification of time sheets or any other document;
- Unauthorised possession of property belonging to the establishment, customers or other staff (theft);
- Possessing, consuming, using or being under the influence of alcohol, non prescribed, or illegal drugs while on or before duty;
- Insubordination, threatening or abusive behaviour including fighting (physical assault) and sexual harassment;
- Failure to safeguard the establishment’s property, including willful damage to property or equipment belonging to the establishment, customers or other staff members (health & safety breaches);
- Serious breaches of Health and Safety rules;
- Failure to comply with the business’ Code of Conduct and Policy;
- Any other behaviour which is considered as serious as any of the above.
In the past, employment agreements would commonly list conduct that amounts to “serious misconduct”, however this is less common today, although examples may be listed in a business’ house rules.
The problem with listing examples of misconduct, and serious misconduct, is that the list is never finite. In addition, if an employee engages in misconduct that is listed, that doesn’t necessarily mean that serious misconduct has automatically occurred. You must take into consideration the actual nature of the offence, the surrounding circumstances and the employee’s side of the story before deciding whether serious misconduct has occurred. When this is done, it is possible that what looked like serious misconduct may not be so serious after all, remembering that an offence can only be deemed to be serious misconduct if it is so serious that it undermines the trust and confidence you have in the employee.
Remember also that even if you do deem that serious misconduct has occurred at the end of the disciplinary process, the result may not result in dismissal. Often employers go direct from a finding of serious misconduct to dismissal, however one does not necessarily follow the other and a less serious sanction may result.