In an organization, misconduct can act as a serious problem if it is not managed properly and fairly. Employers, too, have the right to expect satisfactory work performance and conduct from their employees.
In Section 118 of the Labour Relations Act 66 of 1995 (LRA), it is stipulated that an employee’s dismissal must be for a just cause and effect after taking into account the relevant codes of good practice.
Misconduct in the workplace refers, but is not limited to:
1. Absent without leave or permission:
Absence from work for a short period (a day or two) without leave or for no good reason is considered minor misconduct by law.
When absences, even short ones, become the norm among the workforce, it can pose a big problem for the employer.
Since employers rely heavily on their employee’s attendance at work to complete the tasks, this is the case.
Employers are often frustrated when workers are absent, especially when it is repeated or over a protracted period. When such absences continue, employers’ frustration often turns into anger.
2. Reporting late for the duty:
The Labour Relations Act (LRA) and sound management principles require employers to use swift, fair and graduated disciplinary measures when dealing with late-arriving employees and other misconduct.
Employers faced with persistent late comers should start providing warnings as soon as the problem occurs and give a series of increasingly serious warnings as the problem continues.
The employer should convene a formal disciplinary hearing if the employee comes late again after receiving a series of warnings and a final warning.
A hearing should be held to determine whether the employee is actually at fault for the most recent alleged late-arriving incident and whether dismissal or some other disciplinary action is the most appropriate.
Employers shouldn’t ignore repeated instances of late-arriving from employees and then, when they finally lose patience, lose their cool and fire the employee.
3. Negligence / Gross Negligence:
A person’s conduct is negligent if:
1. A reasonable person would have anticipated that the particular circumstance might exist or that the conduct in question might have the particular effect;
2. The reasonable person would have taken steps to prevent such a possibility; and
3. Contrary to the conduct expected from a reasonable person, the accused behaved differently.
It is evident from the above that there is sometimes a overlap between poor performance and negligence, and negligence can be either characterized as incapacity or as misconduct, depending on the circumstances.
An act or omission is considered negligent if it is done without care and/or diligence.
The test for negligence is an objective one, namely whether the harm or potential harm could have been avoided if a reasonable individual had guarded against it.
Whether someone has been negligent depends on the degree of skill that can be reasonably expected of them. If the employee knows that their neglect of duty could result in serious damage to the property of their employer, the negligence can be considered “gross”.
4. Gross dishonesty:
Dishonesty in the workplace can take many different forms including:
a. Stealing of the employer’s money out of the till, petty cash box or safe;
b. Taking of business merchandise;
c. Unauthorized and undisclosed use of employer’s equipment;
d. False claims of illness as reason for absence from work;
e. Punching an absent employee’s clock card;
f. Getting another employee to punch one’s clock card in one’s absence;
g. Falsifying of cheques, invoices, quotations or business documents;
h. Embezzlement of the employer’s funds;
i. Misrepresentation or falsification of employment qualifications or other credentials;
j. Fraud – for example, selling the employer’s merchandise or services and charging the client privately for own gain;
k. Telling lies to cover up work errors or for other reasons;
l. Secretly competing with the employer by engaging in own business in the same field;
m. Receiving bribes.
If an employee is disciplined for any form of dishonesty, the issue of trust arises. Gross dishonesty includes any form of deception, illegal or unethical acts detrimental to the employment relationship.
An employer can claim that the trust element of the employment relationship has been damaged when an employee is found to be dishonest.
5. Insubordination:
Generally, employees who refuse to accept or obey reasonable and lawful instructions from a superior or employer are deemed insubordinate.
It can be described as resistance to (or defiance of) authority or as disobedience, refusal or failure to obey reasonable and lawful instructions.
6. Insolence:
An employee who is insolent is not respecting their employer.
Hence, it refers to an employee’s disrespectful behaviour toward an employer.
The test for both insolence and insubordination is whether the employee’s conduct indicates an intent to challenge the employer.
An act of insolence can be considered impudent, cheeky, disrespectful or rude.
7. Reporting for duty whilst under the influence of alcohol / drugs:
If you suspect an employee is under the influence of drugs or alcohol, you should complete an observation report and administer a Breathalyzer test.
In the event that an employee refuses to submit to a breathalyzer test, it should be treated as an aggravating circumstance and used against him or her.
