When is misconduct serious misconduct?

If you are an employer, you might one day be in the difficult position of having to summarily dismiss an employee. If so, it is important to get it right and make it legal. While you might think that adhering to the conditions set out in the employment policy should be sufficient a recent case shows that it might not be so simple. This week on You Legal TV we take a look at what the Courts say matters and how to best word your employment conditions.

See below for complete transcript of this episode -

One thing that has probably crossed every employers and employees mind at some stage is – how bad does behaviour have to be to permit summary dismissal? Most employment contracts stipulate that an employee will be immediately terminated for serious misconduct.

But when is misconduct serious misconduct? A recent case examined whether intoxication could be considered serious misconduct sufficient to make summary dismissal valid?

The company workplace policies certainly listed intoxication as an example of gross misconduct justifying summary dismissal. Therefor when an employee was found to be severely intoxicated at a company conference you would expect his firing to be an open and shut case. But surprisingly not.

The judge found that irrespective of what the company workplace policies said, and even if they were considered to be contractual obligations, the standard for summary dismissal was the one that applied at common law – gross misconduct or serious misconduct in serious circumstances.

Consequently, intoxication could be considered serious misconduct if it was serious intoxication that is, if the employee’s conduct was severe, brought the company into disrepute or was frequent.

The employer might have been in a better position if the company policies were drafted in a subjective rather than an objective way. This way you would not be reliant on proving that an employee’s action did constitute gross misconduct but instead it would be sufficient to prove that you thought they did.

What Should I Do Next?

Contact us if you would like further legal advice on the serious misconduct.  Our lawyers at You Legal will be happy to assist you in whatever way we can.

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* This blog is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.