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MISCONDUCT - CONFLICT OF INTEREST / DERELICTION OF DUTY

Conflict of interest occurs when the employee does something that conflicts with the interests of the employer.


For example, the employee engages in a side business, conducting the same business as what the employer is engaged in, or even doing business with the employer’s clients for the profit of the employee presently. It could also include conducting their own private business during working hours, using the employer’s resources and equipment – such as computers, email access, internet access, using the employer’s telephone facilities, and so on.


This is usually a dismissible offence.


What to look for?

Very often, it would be necessary to take possession of the employee’s working tools and examine them for any usage that does not constitute business usage (like a work-provided computer or cell phone). This would entail examining the employee’s emails and or digital presence to establish the extent of the private use and check into the history of internet usage.


It may be found that the computer or phone has been used to access and download pornographic websites on the internet – that will make the charge much more serious.


All evidence must be carefully documented and printed.


Consult the employer’s procedure manual, and policy regarding private usage of the employer’s resources, to show that this was in the policy.


Establish that the employee was aware of the policy.


Speak to the employee’s manager in regard to their work performance – is their work up to date, is their job output satisfactory, do they meet their targets, and so on?


This would enable you to show that the time that the employee is wasting on private business or competing with the employer is affecting their work performance.


What must the investigator prove at the disciplinary enquiry?

Produce the evidence to show that the employee was using the employer’s resources for private usage or was competing unfairly with the employer.


Produce any witnesses who may support your evidence or produce the evidence regarding the employee’s work performance. Obviously, if their work performance is satisfactory then you do not even mention it.


State that unfair competition with the employer cannot be permitted and that any conflict of interest between the employer and employee cannot be permitted. Put forward argument stating that such action by an employee destroys the element of trust in the employment relationship, and it shows that the employee does not have the interests of the employer at heart, as is used in common law duty to do so.


Every employee is under an obligation to serve their employer with the utmost good faith.


Hairdressing, Cosmetology, Beauty, and Skincare Industry standard –

Reference: Clause 25 of the Collective Agreement of the National Bargaining Council for the Hairdressing, Cosmetology, Beauty, and Skincare Industry refers to:


25. PROHIBITION OF PRIVATE WORK

25.1 An Employee, whilst in the employ of an Employer engaged in the rendering of Cosmetology services, excluding Part Time Employees, shall not –


25.1.1 Solicit clients or render or undertake to render any Cosmetology services other than instructed by his/her Employer.


25.1.2 Be directly or indirectly involved in any way or manner whatsoever in any Establishment or Legal Owner without the written permission of the Employer.



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