Gross Misconduct

A common ground for the termination of an employee is gross misconduct. What is gross misconduct and how can it be proven? 

What is Gross Misconduct?

Gross misconduct refers to severe and unacceptable behaviour by an employee that significantly violates the employer-employee relationship, often resulting in a breach of trust and undermining the fundamental principles of the employment contract. 

It goes beyond minor infractions and typically involves actions that are unprofessional and unethical, warranting immediate disciplinary action, including termination even if it’s the first offence.

What is Gross Misconduct at Work?

What gross misconduct is can vary depending on the nature of the business, industry, and specific company policies. 

Generally, gross misconduct includes acts that have a detrimental impact on the organisation, colleagues, or the overall work environment. 

It is crucial for employers to clearly define and communicate what constitutes gross misconduct within their organisation. They can detail the list of gross misconduct in the employee handbook or employment contract. This way employers can readily enact their policies (i.e. termination) without a problem. 

Examples of Gross Misconduct

While the list of gross misconduct vary from one organisation to another, here are some examples that are commonly included: 

Theft or Fraud: Deliberate acts of stealing company property, embezzlement, or engaging in fraudulent activities that comprise the financial integrity of the organisation.

Violence or Threats: Any form of physical violence, including assault or threats of violence against colleagues, clients, or superiors, is considered gross misconduct. This often extends to bullying and harassment.

Serious Health and Safety Violations: Willful disregard for health and safety protocols and engaging in activities that put oneself or others at risk can be classified as gross misconduct.

Intoxication at Work: Being under the influence of alcohol or drugs during working hours, leading to impaired job performance and creating a safety hazard, is considered gross misconduct.

Serious Breach of Confidentiality: Disclosing sensitive company information, trade secrets, or proprietary data without authorization is a severe violation of trust and can be grounds for gross misconduct.

Misconduct vs. Gross Misconduct

While misconduct generally refers to any unacceptable behaviour in the workplace, gross misconduct distinguishes itself by the severity and gravity of the actions involved. 

Misconduct may include less serious transgressions such as tardiness, submitting incomplete work, personal use of company resources, or being rude to superiors and colleagues. On the other hand, gross misconduct involves actions that are so egregious that they irreparably damage the employment relationship.

Misconduct often results in a warning or reprimand (verbal or oral). Repeated misconduct can be considered gross misconduct as well and may lead to termination. For this reason, employers must also define when a misconduct turns into gross misconduct (ie. after 3 written warnings). 

How to Prove Gross Misconduct

Proving gross misconduct requires a thorough and well-documented investigation. HR professionals and employers should, in general, adhere to the following steps:

Establish Clear Policies

Ensure that your company has well-defined policies outlining what constitutes gross misconduct. Clear expectations can help in evaluating employee behaviour objectively.

Remember, if the behaviour is not listed, then it would be difficult to prove the offence and enact disciplinary action, especially termination. 

Conduct a Prompt Investigation

Once an allegation arises, promptly initiate an unbiased investigation to gather evidence. This may include witness statements, surveillance footage, or any other relevant documentation.

Provide a Fair Hearing

Afford the accused employee an opportunity to present their side of the story during a disciplinary hearing. This ensures fairness and compliance with due process.

Document Everything

Maintain a detailed record of the investigation, including statements, evidence, and the decision-making process. Thorough documentation is crucial in case of legal challenges.

Can Employees Get Terminated Because of Gross Misconduct?

Termination is a common consequence when gross misconduct is proven. Employers have the right to terminate employment contracts when an employee engages in actions that constitute gross misconduct. However, it is crucial to follow proper procedures and adhere to employment laws to avoid potential legal repercussions.

Understanding and effectively managing gross misconduct is essential for maintaining a healthy work environment. HR professionals and employers should invest time and resources in creating clear policies, conducting thorough investigations, and following proper procedures to address instances of gross misconduct in a fair and legal manner. This not only protects the organisation but also upholds the principles of justice and accountability in the workplace.

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