Demystifying ‘employee misconduct’

The trouble with trying to explain ‘employee misconduct’ is simple: few people actually understand what misconduct is. Is an inability to complete all your work during the day misconduct? Is sending poorly vetted contracts misconduct? Is being verbally abusive to your colleagues misconduct? Is it misconduct if someone hurls abuse or hits a co-worker?

In common parlance, yes, they are all misconduct. But they are all significantly different in terms of seriousness of misconduct. Also, since people gauge the seriousness of actions differently, there are no clear defining lines, nor is there a pre-set procedure for disciplining and dismissal in the event of misconduct.

Employers are expected to take a reasonable, proportionate and common sense approach to addressing behaviour and language that constitutes misconduct.

What actually is employee misconduct?

Misconduct includes language and behaviour that makes the workplace less efficient and less safe. Since ‘misconduct’ is a broad term, it is best understood through some common examples.

• Coming to work late
• Obstructing others’ work
• Inciting a hostile atmosphere
• Being verbally abusive towards others
• Stealing or misusing business property
• Bullying behaviour, physically restraining and violent acts
• Intentional behaviour and actions that defy employer instructions (wilful misconduct)

Misconduct is not the same as incompetence! Lacking the skills or ability to perform work to the required standard and timely is incompetence.

Since misconduct covers such a broad spectrum, it is no surprise that the seriousness and severity of actions must factor into the proportional response of an employer. After all, coming to work late two days in a row is hardly as serious as physically attacking a colleague!

If you feel your employer is making mountains out of molehills, using minor indiscretions to threaten you with termination, speak to a misconduct employment lawyer in Toronto. We will help ease your mind and explain where you stand.

Can an employee be terminated without notice for misconduct?

Yes, an employee can be terminated without notice or termination pay for wilful misconduct. This means the employee’s actions must be deliberate, in disobedience of employer instructions and serious.

The conduct must be shown to be so egregious that the employer’s reaction was correct in the circumstances. An employee being violent towards others, or stealing from the company are clear examples of wilful misconduct. Breaking a cup accidentally is not.

Also, if the employee has been working for the organization for a number of years, the reasonableness of termination, severance pay and duration of employment can become questions that will be raised before the courts.

Read more about wrongful dismissal and harassment

Stopping harassment at the workplace

5 examples to help you understand wrongful dismissal

How sexual harassment leads to constructive dismissal

Dealing with employee misconduct

How an employer responds to misconduct depends on a great many things. The manager or supervisor must consider three things before determining an appropriate response. This means looking at:

1. Seriousness and frequency of misconduct
2. Effect on employees and the organization
3. Work history of the employee

Therefore, an employer may have different responses to identical misconduct of two different employees.

‘Three strikes and y’er out!’ Employment is not baseball. There is no such thing as three strikes. An employee can be given multiple verbal warnings, warning letters and even suspensions.

Progressive discipline

Disciplining for misconduct is propounded as a series of escalating measures. How the employer chooses to employ these depends on the specific circumstances of employment and the misconduct itself. Sometimes a warning letter to the employee can have the desired effect; at other times, harsher measures are required.

• Hear what the employee has to say (get their point of view)
• Collect all facts relevant to and surrounding the misconduct
• Issue a verbal warning to the employee for his or her behaviour or actions
• Write a warning letter to the employee (this will become part of their formal record)
• Consider a brief suspension for misconduct
• Dismissal if the employee continues with misconduct

There is no concept of ‘three strikes’. It is neither prescribed nor required that a verbal warning must be followed by a warning letter, which will be followed by suspension, and finally dismissal. An employer should take reasonable and proportionate measures to address misconduct.

For employees: Is your employer bullying you with implicit threats / warnings of employee misconduct?

If your employer constantly threatens to terminate your employment for even small transgressions, that behaviour/taunting itself can be construed as bullying and abusive. In that case, an employer can be reported to the labour board or other appropriate authority. Speak to a Toronto employment lawyer to understand what you should do to address this hostility in the workplace.

For employers: Is your employee disobeying your instructions?

If an employee continues to indulge in misconduct, despite repeated warnings, there are a few steps you can take. Follow progressive disciplining to ensure the employee is sufficiently warned and aware that the misconduct is against company policy.

Thoroughly, accurately and provably record misconduct in order to be able to justify your decision to terminate the employee. Note that video or audio recordings of that employee made in secret can amount to invasion of privacy. Your policies should not be seen as singling out any one employee.

Moreover, an employer has to ensure that their response to misconduct is not disproportionate. For instance, dismissing an employee who arrives late once (and has valid reasons for the same) will be seen very unfavourably by the courts.

 

Speak to Soni Law Firm if you have any concerns about misconduct or a hostile work environment. We provide mature advice that looks after your interests and help employers and employees resolve disputes.