Gross Misconduct

What is gross misconduct and how does it differ from normal misconduct? Is there such a thing as instant dismissal?

Gross Misconduct is the most serious level of misconduct in the workplace and affords an employer the opportunity to dismiss an employee on a summary basis without notice or pay in lieu of notice, as the conduct is such that it has destroyed the employer/employee relationship and it cannot continue.

However, to stand up to both internal and external appeals it must be used as a sanction appropriately and proportionately.

One of the most common misuses of gross misconduct is that because no notice is payable employers think dismissal can be immediate and instant. This is not the case and regardless of the seriousness of the conduct involved an employee is always entitled to due process and a fair hearing before a decision to dismiss is taken. Once the relevant investigation and hearing have taken place, then the dismissal without notice can be effected.  It will often be appropriate to suspend an employee suspected of gross misconduct pending an investigation or disciplinary hearing but in this circumstance suspension is not a sanction and should always be paid.

The next misuse of gross misconduct is that it is applied disproportionately and to situations that a lesser sanction should have been applied. Gross misconduct only covers serious matters that do not warrant an employee being given another chance or an opportunity to improve their behavior. It is important to specify examples of gross misconduct behavior in the disciplinary policy and to give employees a clear indication of what types of behavior will be classified as gross misconduct. Typical examples include theft, falsification of records, fraud, physical violence, bullying and harassment, gross insubordination, breaches of confidentiality and being under the influence of alcohol and drugs at work. Other behaviors can be included that are business specific and there should be a reference to the fact that the list of potential gross misconduct behaviors is not exhaustive.

Matters such as general poor work performance, time keeping issues and absenteeism should be treated as less serious offences with increasing disciplinary sanctions applying on a staged basis if required standards are not achieved.

As summary dismissal is such a serious sanction, an employer must be able to demonstrate to a Tribunal that it was fair and reasonable in the circumstances and the decision was that which a reasonable employer would have made.

As with all dismissals, due process and fairness is always required and the following will help ensure that a decision to dismiss for gross misconduct will not be overturned:

  • Conducting a thorough investigation into the alleged misconduct;
  • Genuinely believing employee to be guilty;
  • Allowing the employee to respond fully to allegations;
  • Allowing the employee to review all the information and evidence that was relied on to make the dismissal decision;
  • Having the disciplinary hearing conducted by a different person to whoever did investigation ;
  • Allowing representation and adequate notice of investigation and disciplinary meetings;
  • Considering if other sanctions short of summary dismissal would be appropriate; and
  • Allowing the right of appeal against the dismissal decision.