What is gross misconduct, and could it cost you your job?
29 Apr 2022
Understanding the Labour Relations Act will help you succeed at work
There are varying degrees of issues you may face in the workplace that could lead to a difficult work environment, from incapacity to negligence and misconduct. This article will help you understand the differences between these infringements and how to approach disciplinary matters.
What is incapacity?
Incapacity is the inherent inability of an employee to perform his/her work to the employer’s established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. It is important to note that your employer can under no circumstances dismiss you whilst dealing with incapacity without following the correct procedure. Dismissal must be both substantively and procedurally fair.
These steps should be followed:
Notify: Your employer should issue you with a written notice to attend a consultation to discuss your unsatisfactory work performance. You should be given at least 48 hours’ notice, excluding weekends and public holidays, to prepare for the consultation.
Consultation: During the consultation, you must be afforded an opportunity to explain why you are not meeting the required standards set out in your employment contract. During all consultations on incapacity, you have the right to be assisted by a trade union representative or a fellow employee.
What is negligence / gross negligence?
A person’s conduct is negligent if:
- The reasonable person would have foreseen the possibility that the particular circumstance might exist or that his conduct might bring about the particular result
- The reasonable person would have taken steps to guard against such a possibility, and
- The conduct of the accused differed from the conduct expected of the reasonable person
It is obvious from the above that there is sometimes an overlap between poor work performance and negligence. Negligence can be treated either as incapacity or as misconduct, depending on the circumstances.
Types of misconduct
Misconduct may differ from company to company and there is no complete list of the types of misconduct an employee can commit. Specific forms of misconduct would thus be dependent on the type of industry your company is operating in, the culture and specific workplace rules and regulations.
Typical examples of misconduct are theft, fraud, assault, wilful damage to company property, intimidation, insubordination, unauthorised absenteeism, consumption of alcoholic beverages on company premises, arriving at work under the influence of alcohol or a narcotic substance, arriving at work with the smell of alcohol on the breath, wilful poor work performance and sexual or racial harassment, to name but a few.
Dishonesty in the workplace can take many different forms, including:
- Stealing employer’s money out of the till, petty cash box or safe
- Taking of business merchandise
- Unauthorised and undisclosed use of employer’s equipment
- False claims of illness as reason for absence from work
- Punching an absent employee’s clock card
- Getting another employee to punch one’s clock card in one’s absence
- Falsifying of cheques, invoices, quotations or business documents
- Embezzlement of the employer’s funds
- Misrepresentation or falsification of employment qualifications or other credentials
- Fraud – for example, selling employer’s merchandise or services and charging the client privately for own gain
- Telling lies to cover up work errors or for other reasons
- Secretly competing with the employer by engaging in own business in the same field
- Receiving bribes
Reporting late for duty
Consistently arriving late for work could be seen as gross misconduct by your employer and lead to a dismissal. Avoiding such circumstances can be made easier with professional help and guidance. See what steps you can take to maintain a healthy relationship with your employer and take the correct approach to ensure your employment contract is not breached.
Disciplinary processes
Both the principles of sound management and the Labour Relations Act 66 of 1995 require that employers use firm, swift, fair and graduated disciplinary measures to deal with late-coming and other employee misconduct before dismissing the offenders.
In other words, every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again, the employer should convene a formal disciplinary hearing.
The outcome of a disciplinary hearing and appeal procedure
Within a reasonable period after the disciplinary hearing, you should be furnished with a Notice of Outcome setting out the finding on each charge and the sanction.
A Notice of Outcome is a written notification issued to a complainant and a respondent following the conclusion of a proceeding under this Code. Such notice should also advise the right to appeal the outcome.
To initiate an appeal, you should file a Request for an Appeal.
Appeal hearings
After receiving a Request for Appeal, your employer will convene an appeal hearing, which will be conducted by a new presiding officer. All evidence and legal argument submitted at the disciplinary hearing will need to be submitted once again. Based on the appeal hearing, the presiding officer will decide the matter.
Should you not be satisfied with the outcome of the disciplinary hearing, you will need to submit this matter to the CCMA or appropriate Bargaining Council. You should contact a labour expert or the CCMA immediately as there are time frames that need to be adhered to.
Disciplinary Code provides framework
Where there is misconduct, a rule, norm, policy or practice needs to be in place, which an employee can break either by way of omission or commission. A Code would provide a framework, setting out how employees are to conduct themselves and behave at work. In this way, employees have certainty regarding the consequences of any unacceptable behaviour in the workplace and cannot plead ignorance to what constitutes misconduct.
With Legal&Tax you’re not alone
It is important to remember that you have the right to be treated fairly, no matter what situation you find yourself in. Our Legal Advisors are here to assist you and ensure your rights as an employee are upheld
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Article sourced from Legal&Tax.
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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Michael Visser
Michael Visser is a legal advisor at Legal&Tax. He has a Bachelor of Commerce (B.Com.) Law and LLB from The University of Pretoria. Read more about Michael Visser
