MISCONDUCT

Section 14 of EMPLOYMENT ACT 1955 (REVISED 1981) ACT 265

IS MISCONDUCT DEFINED IN THE EMPLOYMENT ACT? 

The term misconduct is not defined in the Employment Act, although the Act states that an employer may dismiss an employee “on the grounds of misconduct which is inconsistent with the fulfilment of the express or implied conditions of his service”. This means that any behaviour which conflicts with express rules established by the employer or with implied conditions of service may be considered misconduct. Misconduct may be defined as any action or behaviour which conflicts with the interests of the employer.

Not all acts of misconduct are sufficiently serious to deserve dismissal, the most severe penalty which can be imposed by an employer. Minor misconduct calls for a lighter penalty. The Employment Act recognises downgrading or demotion, suspension of wages and other lighter penalties.

WHAT RIGHTS DO EMPLOYERS HAVE TO IMPOSE RULES AND REGULATIONS ON EMPLOYEES? 

Rules and regulations are examples of express conditions of service. Failure to comply with these rules may lead to punishment and possibly dismissal. Employers have the right to establish rules in their workplace which apply to their employees. The rules should be in writing and copies of the rules given to workers who should not only acknowledge receiving a copy but also should agree that they understand the rules and promise to abide by them.

Example:

When a copy of organisational rules is distributed to employees, they should be required to sign a declaration as follows:

“ I……(name) ….. (Identity card number) hereby acknowledge that I have received a copy of the organisational rules. I understand these rules and I agree to abide by them. 

Dated….”

The rules should be reasonable and relevant to the nature of the employer’s business. If an employer introduces a rule which is ignored by one or more employees, as a result of which the employer dismisses one or more employees, the workers may file a claim under the Industrial Relations Act that their dismissal was without just cause or excuse or they may make a claim at the Labour Department for termination and other benefits on the grounds that their dismissal was unfair. If they can successfully argue that the rule ignored by them was not reasonable, their dismissal may be found to be unfair.

WHAT ARE THE MOST COMMON EXAMPLES OF MISCONDUCT? 

There are no statistics available to prove which forms of misconduct are most common but, generally, the following are regularly found in workplaces.

Examples of misconduct include:

1. Lateness, leaving work early, malingering (taking long breaks or not being at the workstation during working hours)

2. Absence without permission

3. Stealing, removing employer’s property from the workplace without permission

4. Fighting

5. Disclosing confidential information 

6. Fraud

7. Misuse of employer’s property (vehicle, computer or other equipment)

8. Insubordination (refusal to carry out legitimate orders)

9. Sexual harassment or immoral behaviour

10. Abuse of sick leave

11. Failure to comply with organisation’s written rules (dress code, smoking in non-smoking area)

12. Sleeping during working hours

13. Inappropriate language or behaviour in front of customers

Read more our Guide to the Employment Act