Workplace Misconduct

Workplace Misconduct

Work can be stressful at times, especially during economic downturns when employees may need to boost productivity due to limited budgets. Stress, job dissatisfaction, and anger may lead to misconduct in the workplace or even off-site. Misconduct is unacceptable behavior that’s categorized as either general or gross. You may get a warning for general or minor misconduct, but you must change your behavior to keep your job. Gross misconduct, the more serious kind, can be grounds for immediate dismissal.

Excessive Tardiness or Absences. Some tardiness or unexcused absences usually fall within the general misconduct category. You may show up late for work some days or fail to call in when you’re sick. If this behavior becomes habitual, it may soon be considered gross misconduct, especially if you’ve been warned in the past. The definition of gross misconduct can vary by state or even employer. Skipping a day of work to interview for a job may fall within that realm.

Insubordination

Insubordination is another type of misconduct in the workplace. It is often considered gross misconduct if it disrupts productivity or hinders sales. Insubordination is a defiance of authority directed toward a higher level manager or boss. This defiance can include a lack of respect, disregarding deadlines and doing things outside the scope of what’s permitted. An example of insubordination hindering sales is defying your manager in front of clients, which can result in lost projects.

Rudeness and Abusive Language

There is no place for rudeness and abusive language in the workplace. Blatant rudeness and the use of foul language is usually considered gross misconduct, especially if it is regularly demonstrated on the job. But the employer must establish guidelines for this type of behavior. For example, some cursing and rudeness may be acceptable among homicide detectives in a stressful environment, but would probably be grounds for dismissal in a church. A one-time loss of your temper may result in a written warning. If this is behavior is repeated, you’ll probably be looking for another job.

Dishonesty and Theft

Misconduct and Serious Misconduct

“Misconduct” means some form of wrongdoing. Usually, it will involve deliberate wrongdoing, but there may be circumstances where an employee acts so carelessly that it amounts to serious misconduct (i.e. gross negligence or recklessness).

“Serious misconduct” involves serious wrongdoing. Where, after a fair process, it is established that an employee’s actions amount to serious misconduct, an employer may terminate the employee’s employment without notice (sometimes referred to as “instant” or “summary” dismissal). The misconduct must be sufficiently serious that it undermines the trust and confidence that the employer has in the employee (e.g. theft, sexual or other assault, or the use of illegal drugs at work).

Sometimes employment agreements list conduct that the agreement says amounts to “serious misconduct”. If an employee engages in misconduct that is listed, that doesn’t necessarily mean that serious misconduct has automatically occurred. In every case, the employer must consider all the facts and the employee’s response before it decides whether serious misconduct has occurred. When this is done, what looked like serious misconduct may not be so serious after all. Also, note that minor misconduct cannot become serious misconduct just because it is on the serious misconduct list.

Process

The purpose of any disciplinary action is to prevent reoccurrence of the inappropriate behavior/misconduct. The emphasis should be on the corrective action required to change the employee’s conduct and giving the employee a reasonable opportunity to do so, not on punishing the employee.

An employer should generally take the following steps when considering disciplinary action for possible misconduct or serious misconduct. The employee should also know their rights and obligations in this process.

• Before taking action – before commencing a disciplinary process, the employer should assess whether the particular concern or complaint is sufficiently robust and serious to require such a process. It may be necessary for the employer to undertake some preliminary steps to make this assessment (e.g. to read documents, or to speak briefly with someone who saw what happened or the employee who might be disciplined). If the employer needs to speak with an employee who could be disciplined later, then the employee needs to be told of this possibility and that what he/she says could be relevant in any disciplinary process.
• Forewarning and information – if the employer decides to commence a disciplinary process, the employer should provide the employee at the outset with all of the relevant information (e.g. documents), the reasons why the employer is concerned, and the possible consequences the employee is facing (e.g. a warning or dismissal). It could be procedurally unfair if, at the end of the disciplinary process, the employer decides to take a type of disciplinary action that the employee was not forewarned about.
• Preparing for a meeting – the employee should be invited to a meeting to provide a response. The employee should have enough time before the meeting to consider the information provided and to prepare his or her response and should be told that the response can be made orally or in writing, or in both ways. The employee should also be told who is coming to the meeting and should be told of his or her right to bring a support person or representative with him/her.
• Listening and explaining – at the meeting, the employer should listen to the employee’s response with an open mind. If the employer disagrees with the employee’s response, the employer should say so and should provide the reasons for that. This does not necessarily have to be done at the meeting, but the employee needs to know what it is that the employer is thinking, so that he or she has an opportunity to address that.
• Keeping a record – it may be helpful for both the employer and employee to keep a record of all discussions, agreements, and meetings held.
• If further investigation is needed – once the employer has the employee’s response, it may be necessary to investigate further. The employee should be given an opportunity to comment on any new information that comes out of that further investigation. It may be necessary to meet again to do this.
• Decision – once the employer has all of the relevant information, the employer can decide whether the employee has committed misconduct or serious misconduct.
• Considering action to take – the employer should then consider what action it should take if any. At this stage, the employer should consider any matters that could be relevant to what action it takes (e.g. long-serving employee with a clean record), possible alternatives to disciplinary action, and any other appropriate assistance that might be provided to help prevent a recurrence (e.g. training or supervision). The action may be a warning (see below). If the employee has not had an opportunity to comment on the outcome (e.g. dismissal or disciplinary action) it might be necessary to have another meeting to hear and consider what he/she has to say.
• Preliminary decision – in serious or complex situations, the employer could provide the employee with a ‘preliminary decision’ (including details of any proposed disciplinary action), and allow the employee to comment on it before a final decision is made. The employer must consider the employee’s comments with an open mind – that is, the employer must be prepared to listen to the employee and consider what they have to say before making a final decision.
• Final decision – once the employer has reached a final decision, the employer should tell the employee and provide reasons for the decision. This needs to be done in a respectful and sensible way.
• Giving notice – if the decision is to dismiss, and there is no serious misconduct, the employee should be given notice in accordance with his or her employment agreement. If the employee is to be dismissed for serious misconduct, the employer does not have to give notice but may choose to do so anyway.
  Both sides are required throughout the process to cooperate with each other, to answer questions honestly and openly, and to act in a respectful and sensible way. The employee has the right to have a representative present to speak on his or her behalf.

Proof

A disciplinary investigation is not a criminal prosecution – the employer does not need to prove that misconduct occurred ‘beyond all reasonable doubt’. However, to discipline an employee for misconduct, the employer needs to be convinced that the misconduct occurred, and there need to be reasonable grounds to support that. The more serious the misconduct (e.g. theft, sexual assault), or the more serious the possible consequences are for the employee (e.g. final warning, dismissal), the stronger the employer’s supporting information and reasoning needs to be before action is taken.

Suspension

In particularly serious cases, an employer might be entitled to suspend an employee during the disciplinary process. Generally, there is no right to suspend unless the employment agreement provides for suspension. However, employers can sometimes suspend employees when investigating very serious cases if there is a good reason (e.g. alleged theft resulting in a need to ensure the accounts are not interfered with during the investigation; or alleged sexual assault resulting in the need to protect the employee who may have been sexually assaulted).

The employer must also follow a fair process before deciding to suspend the employee. The employee should be given an opportunity to comment on the proposed suspension and the reasons why the employer thinks the suspension is appropriate. Again, the employer must consider the employee’s comments with an open mind.

Warnings

In circumstances where the misconduct is not serious, or where the employer otherwise decides not to dismiss, the employer may decide to give the employee a warning.

The employment agreement may stipulate whether written or verbal warnings are required. The type of warning required may be different at different stages of the process. The warning must include information making it clear what the misconduct is and the consequences of further misconduct. A final warning should be in writing unless there is a different process in the employment agreement.

If an employee has had warnings previously, the employer might be able to dismiss the employee or might give a further or final warning. However, a previous warning or warnings do not always justify dismissal or a final warning – generally speaking, a warning for one type of conduct cannot be relied upon when dealing with another type of misconduct and, if a warning is too old, it may be unfair for an employer to rely on it.

Ethics and Corruption in the Workplace

Corruption inevitably leads to a diminished business climate when public trust is put at risk, according to Stanford Graduate School of Business. Corruption can take many forms that can include graft, bribery, embezzlement, and extortion. Its existence reduces business credibility and profits when professionals misuse their positions for personal gain.

Inefficiency

When resources are tampered with and used improperly, the efficiency of a business suffers. Insufficient resources are available to effectively run the business and maintain its levels of operations. When the news about corrupt business professionals breaks, customers, lose respect and trust, requiring company officials to spend valuable time and resources to monitor the fallout and reassure clients the company is still viable. Legal fees, penalties, and public relations efforts reroute important resources form the core business and lead to an inefficient use of company funds and personnel.

Lost Resources

In addition to the inefficient use of resources, corruption can have a number of other economic impacts on business. Employee ranks often are inflated to cover up the corrupt professional’s activities. The cost of increasing employee ranks in addition to any embezzlement that is going on is passed on to consumers in the form of higher prices. Prices also can be inflated when corruption takes place outside a company in the form of corrupt government officials who take bribes. Consumers pay the costs of vendor corruption when purchasing agents require payoffs, or when vendors skim profits and raise prices to cover their illegal activities.

Weakened Development

Investors are skeptical of doing business with companies and municipalities that are known for corruption. Whether you are seeking investment to grow your firm or you sell investments for a living, you will have a much harder time finding willing investors when bribes or in-kind favors are required, or your business has a history of corruption within its ranks. Competition is unfairly affected when investors’ risk is multiplied by changing business climates that follow corrupt business practices. Due diligence is defeated when the facts change according to the current levels of corruption. Practical investors steer clear of businesses with a corrupt history.

Increases Crime

The results of corruption in business add to the burgeoning roles of crime-fighting government agencies, police departments, and internal investigators. The trickledown effect of corruption usually ends up feeding black market interests and may even support the efforts of organized crime as the activities infiltrate various business levels. Corruption begets continued criminal activity when it goes undetected. The effects of corruption in emerging third world countries are evident and widespread, but even in America, where competition and greed can outweigh the good of society, corruption fuels the growth of criminal enterprises and eventually affects the society in which the business operates.