Various types of misconduct in the workplace
30 August 2021 | R Streso
Misconduct in the workplace refers, but is not limited to:
1. Absent without leave or permission:
No further explanation on this topic is required.
2. Reporting late for duty:
Both the principles of sound management and the Labour Relations Act (LRA) 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 hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate.
The employer should not close a blind eye to repeated acts of late-coming and then, when the employer finally loses patience, lose his/her cool and fire the employee.
3. Negligence / Gross Negligence:
A person’s conduct is negligent if:
1. The reasonable person would have foreseen the possibility that the particular circumstance might exist or that his conduct might bring about the particular result;
2. The reasonable person would have taken steps to guard against such a possibility; and
3. The conduct of the accused differed from the conduct expected of the reasonable person.
It is obvious from the above, 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.
The basis for culpability in negligence cases is the lack of care and/or diligence accompanying the act or omission.
The test for negligence is an objective one, namely, whether the harm, or potential harm, was foreseeable and whether a reasonable person would have guarded against its occurrence.
The test for negligence depends on the degree of skill that can be reasonably expected of the employee.
If the employee is aware that his/her neglect of duty could result in serious damage to the employer’s property, negligence can be said to be “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.
Gross dishonesty constitutes any other forms of deception, illegal or unethical acts detrimental to the employment relationship. Where an employee is disciplined for any form of dishonesty the issue of trust arises. The employer is entitled to claim that, where an employee is found guilty of dishonesty, the trust element of the employment relationship has been damaged.
Insubordination occurs when an employee refuses to accept the authority of his or her employer or of a person in a position of authority over the employee. It may be described as resistance to (or defiance of) authority, or a disobedience, refusal or failure to obey reasonable and lawful instructions.
Insolence means repudiation by an employee of his/her duty to show respect. Thus, it is an employee’s disrespectful behaviour toward the employer. The test for both insolence and insubordination are whether the employee’s conduct demonstrates an intention to defy the employer’s authority. Insolence can be equated with impudence, cheekiness, disrespect or rudeness.
7. Reporting for duty whilst under the influence of alcohol / drugs:
When suspecting an employee to be under the influence of drugs/alcohol, an observation report should be completed and breathalyser test should be performed. This should be performed with a witness present and should an employee refuse to undergo a breathalyser test, it should be seen and used as aggravating circumstances.