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TYPES OF MISCONDUCT

The following forms of misconduct are seen as serious and may lead to the dismissal of an employee. When an employee commits one or more of the offenses, it does not mean that dismissal should automatically follow. Each case must be decided on its own merits.


Derivative misconduct

Specific problems arise when a group of employees who committed the same form of misconduct is subjected to disciplinary action. Derivative misconduct is a term used in circumstances where an employee who has knowledge of misconduct, for example, theft, does not notify the employer. The employee may be dismissed for such misconduct. The following factors would assist in the determination of whether a dismissal for derivative misconduct is appropriate:

  • The undisclosed knowledge must be actual and not insinuated or constructive knowledge of the wrongdoing. This knowledge must be referenced by evidence. The moral blameworthiness essential to the non-disclosure implies a choice made not to tell.

  • The non-disclosure must be deliberate, which shows a lack of good faith.

  • Whether, in a given case, the non-disclosure warranting dismissal is related, in part, to the degree of seriousness of the wrongdoing and the effect of the non-disclosure by a person in the position of that employee on the ability of the employer to protect itself against the wrongdoing.

  • The rank of the employee is irrelevant to the culpability but might be important to the degree of the blameworthiness.

  • There need not be a specific request for the information by the employer; mere actual knowledge by an employee should trigger a duty to disclose. When a request to disclose has been made and not fulfilled, culpability for the non-disclosure is simply aggravated.


Misconduct outside the workplace

Normally employers are only entitled to take action against employees for their conduct as employees. The question then is: does an employer have the right to discipline employees for their misconduct outside working hours or the workplace?


An employer has an interest in an employee’s conduct (for example excessive drinking) outside working hours to the extent that it affects their capacity to perform during working hours. Employees may under no circumstances be dismissed for non-work related conduct but what needs to be considered is the nature of the misconduct, the nature of the work performed by the employee, the employer’s business size, the nature and size of the workforce, the employer’s position in the market place, the nature of the employer’s business, the relationship between the employer and the employee, the impact of the misconduct on the workforce as well as the employment relationship, and the capacity of the employee to perform their job.

The non-disclosure of a material fact, for example, fraud committed outside the course of the employee’s employment, an employee can be dismissed, as the behaviour of fraud can be regarded as a breach in the standard of conduct required by the employer outside the workplace which may render the employee unfit for continued employment. Thus, non-disclosure of a material fact during the application and interview for employment, in circumstances where the position requires of the employee to display honesty and integrity, may justify a dismissal for misconduct.


It must be considered whether an employee’s conduct impacted the employment relationship in such a way that their actions resulted in the breakdown of the trust relationship between the employer and the employee.


Absence without leave or permission

Employees must render service – they must be at the workplace during working hours. Employers normally are faced with 3 (three) forms of absence:


1. Absenteeism

Absenteeism can be divided into late coming or absence from the workstation/place for short periods.


2. Abscondment

When an employee is absent from work for a period that warrants the inference that the employee does not intend to return to work. When an employee absconds, it is treated as a repudiation of the employment contract entitling the employer to cancel the contract.


3. Desertion

This is when an employee has implicated or stated that they do not intend to return to work. The employee has the right to be heard if the assumption that the employee intended not to return, turns out to be incorrect.


The elements of the offense of absenteeism are that the employee must have been absent from work at a time when the employee was contractually obligated to render services and that they had no excuse for their absence. The onus rest on the employee to explain their absence – like all offenses, absenteeism requires fault on the part of the employee. If the employee was ill, in a coma, in an accident, in jail, did not have transport, etc, they cannot be said to be at fault.


Imprisoned employees

When employees are imprisoned, employers are faced with a very difficult situation. If the employer knows that the employee is imprisoned, the employee’s absence could not be classified as either abscondment or desertion. When an employee is imprisoned, the employer must consider whether the incarceration was lawful; whether the employee was at fault; how long the incarceration is likely to continue, and whether there are alternatives to dismissal. The size and financial position of the employer and the importance of the employee’s position must also be considered.


The Labour Appeal Court accepts that imprisonment council incapacitates an employee and that the meaning of the term “incapacity” should not be restricted to ill health, injury, or poor performance. Whether a dismissal for “incapacity” due to imprisonment would be substantively fair depends on the facts of the case. An employer needs to consider the reasons for the incapacity, the extent of the incapacity, whether it is permanent or temporary, and whether any alternatives to dismissal do exist.


Failure to inform the employer of the reasons for the absence

Some employers also add a further element to the offense of absence: employees must inform the employer immediately of the reason for their absence. If they don’t. they may be charged for their failure to inform in addition to the charge of absence. An explanation for an employee’s failure to inform the employer will be adequate if the employee can prove that the failure was beyond their control.


Abusive language and racist remarks

Swearing that impairs the dignity of those against whom they are directed, may in certain circumstances justify dismissal, even on the first occasion. When such language is addressed to a superior, it may also be insolence or insubordination, The circumstances and practice in the workplace must be taken into consideration when determining whether language could be labeled as abusive.


When abusive language is racist or sexist, it will most likely result in a dismissal of an employee as it is regarded as serious misconduct. Employers must have a zero-tolerance Harassment/Discrimination policy in place as this form of misconduct impairs dignity and makes working environments intolerable. Where the abusive language of a less serious nature is used persistently, dismissal will be justified.


Abuse of sick leave

Employers are often faced with employees who stay away from work, only to claim that they were sick when they report for duty a day or two later. If the employer can prove that the employee is being dishonest about their “illness” such an employee may be dismissed for being dishonest or abuse of sick leave. An employer is not required to pay an employee if an employee does not produce a medical certificate stating that the employee was unable to work for the duration of their absence on account of sickness or injury. Not only is the employee not entitled to be paid but the employer may also institute disciplinary action.


Medical certificates: only constitute indirect evidence of an employee’s illness. As documents “cannot speak for themselves”, the employer can question either the authenticity or the content of the certificate if there is a reason to do so. Employers are advised to consult the medical practitioner before rejecting a certificate. To accept a medical certificate, there must be no reason to doubt its authenticity, it must clearly state that in the practitioner’s own opinion, the employee was too ill or injured to work for the entire period of absence. This would require some proof of the fact that the patient was examined by the practitioner and an indication that the practitioner was of the professional opinion that the employee was unfit for work for the entire period of absence. A certificate that merely reflects what the employee told the practitioner does not meet these requirements.


It is recommended that employers, as part of their efforts to combat absenteeism, develop a clear policy regarding absence due to ill health and or injury. They must only accept medical certificates that comply with the legal requirements (issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament) and provide sufficient proof of authenticity and proof of their contents.


The policy should state clearly that the employer may set standards for acceptable levels of absenteeism and that if an employee’s level of absenteeism is deemed unacceptable, it could ultimately result in dismissal.


Assault

Assault occurs if there is any intentional and unwanted physical contact applied to another person, however slight the force used may be. Examples of assault include punching a person or poking someone with an object.


The force used can be direct or indirect. For example, if because of an assault, a person drops a child they were carrying, that is also an assault on the child – even though the child was not directly assaulted.


Assault can occur even without physical contact. A manager who locked workers in a cold room as a disciplinary measure was held to be guilty of assault, even though they had not laid a hand on the employees.


If a threat is made to apply force and the victim reasonably believes that the person can carry out the threat or there is a real possibility that they will (for example, if a person points a gun at someone or produces a knife), an assault may be provided to have occurred. A threat can be made by words or conduct. As a result, making verbal threats, whether or not accompanied by threatening gestures such as shaking a fist at a person, may also constitute an assault. An assault can also occur when a person approaches and confronts another aggressively or blocks the way of another in a threatening manner.


Competing with the employer/conflict of interest

Common law requires that employee should devote all their time and efforts to the best interests of the employer. This is the basis for introducing a charge of conflict of interest – or unfairly competing with the employer. It arises when the employee no longer devotes their time and efforts to the best interests of the employer but begins to devote their time and interests to further their own ends for their own profit.


The contract of employment forms the basis of the employment relationship, and the employer has the common law right to expect all employees to do their best in the interests of the employer, and the employer has the right to be able to trust their employees to carry out the duties for which they were employed.


When employee places themselves in a position where their own interests come before those of the employer, a state of conflict of interests exists between the two parties.


Most employers have a rule in place stipulating that employees are forbidden from engaging in outside interests other than those of the employer, either during working hours or after working hours. However, the nature of the conflict of interest must be established. For example, a beauty therapist who has a part-time job as an au pair during the evenings would not be engaging in anything resembling a conflict of interest.


However, some employers also have a ruling in place requiring that if employees do have a part-time profit-making occupation, then they should inform the employer of this because such activities are forbidden without the employer’s prior consent. Failure to comply with such rules would place the employee in breach, and the employer would be entitled to institute disciplinary action.


In bringing such a charge, the employer would need to establish:

1. Did the action of the employee constitute a conflict of interest?

2. What was the exact nature of the conflict?

3. What was the nature of the actual or potential prejudice against the employer?

4. Has the employer incurred any financial losses?

5. Was there any dishonesty on the part of the employee?


Damage to property

Employees who do not respect the property of their employers may be disciplined. Where an employee wilfully damages the property of the employer, dismissal will be justified. Even where damage to property is a result of an employee’s negligence, dismissal may be justified.


Negligence

A person’s conduct is negligent if:

  1. the reasonable person would have foreseen the possibility that the particular circumstance might exist or that their conduct might bring about the particular result;

  2. the reasonable person would have taken steps to guard against such a possibility; and

  3. the conduct of the accused differed from the conduct expected of a reasonable person.

There is sometimes an overlap between poor work performance and negligence. Negligence can be treated as either incapacity or as misconduct, depending on the circumstances. The basis for culpability in negligence cases is the lack of care and/or diligence accompanying the act or omission. The test for negligence is an objective one, namely, whether the harm (or potential harm) was foreseeable and whether a reasonable person would have guarded against its occurring.


Negligence does not extend to acts where an individual, knowing full well the probability of the consequences of their actions and the dangers in their behaviour, deliberately and wilfully chooses to behave in such a manner regardless of the consequences.


The test for negligence depends on the degree of skill that can reasonably be expected of the employee. If the employee knows that their neglect of duty could result in serious damage to the employer’s property, negligence can be said to be “gross”.


Disclosing confidential information

Disclosure by employees of confidential information amounts to a breach of trust, and dismissal may be the appropriate sanction. The same would be if an employee is in breach of the company’s Protection of Personal Information Policy and the regulating Legislative Act associated. Employees who disclose unlawful acts of employers to authorities are protected, and the dismissal of these employees is automatically unfair.


Dishonesty

Dishonesty can take many forms. The employee may not have been truthful with the details recorded in their CV, or they may not have been truthful at the interview. Whatever it entails, dishonesty is usually some act or conduct by the employee that is designed to deceive the employer.


Since “dishonest” is normally used to describe an act where there has been some intent to deceive or cheat, the employer must have evidence to show that the employee intended to deceive the employer. Dishonesty entails a lack of integrity or straightforwardness and a willingness to cheat, lie, or act fraudulently.


Alcohol and drugs

An employer must have a policy in place regulating the issue of alcohol and drugs. The policy must state that any person(s) who is, or who appears to be, under the influence of intoxicating liquor or drugs, may not be permitted to enter the workplace, or may not be permitted to remain in the workplace. The policy should also refer to requirements as stipulated and regulated through the Occupational Health and Safety Act (OHSA) – Section 2A: General safety.


In addition, the policy should state that no person at the workplace, or on the premises, shall be under the influence of, or have in their position, or partake of or offered to any other person, liquor, or drugs. Any person who is, or who (in the opinion of the employer) appears to be under the influence of intoxicating liquor or drugs, shall under supervision be required to undergo a breathalyzer test or a drug test, and the tests shall include making notes of indications or signs of intoxication, such as bloodshot eyes, the smell of liquor on the breath, unsteadiness on the feet, disorderedly appearance, slurring of speech, inability to walk a straight line with the arms held out horizontally to the body, aggressiveness, abusive manner and so on.


The tests shall be conducted in the presence of a witness for the employer, who will certify that the stipulated procedure has been followed and in the presence of a witness for the employee, who will testify that the procedure was carried out fairly and in accordance with company policy. Then will disciplinary procedures follow?


The employer’s evidence to prove the offense should include the full report of the test, including the breathalyzer reading, and details as stated above. The policy should be based on “zero-tolerance” and prohibit the use or consumption of alcohol or drugs during working hours and it must prohibit the possession of alcohol or drugs on the premises of the employer.


It is essential that the breathalyzer should be a reliable instrument, a person must be properly trained in its use, and it must be an instrument that can be calibrated before each test is carried out. This will prevent the possibility of the employee putting forward allegations of the inaccuracy of the instrument as a defense.


Should an employee refuse to be tested, it should be regarded as an aggravating circumstance because the offer of a test is an opportunity for the employee to prove their innocence. Such a refusal shall count against the employee and disciplinary action may be instituted for such a refusal.


There is no obligation on the employer to offer an employee assistance with alcohol or drug rehabilitation unless the employer has an Employee Assistance Programme in place which makes provision for such assistance to be offered to an employee.


Policies and disciplinary codes

If an employer has for example a zero-tolerance alcohol policy an example, care must be taken to ensure that employees are aware of the policy. The dismissal of a drunken employee may be found to be unfair if the employee claims that they are not aware of such policy. The employee affected by the rule, i.e., that employees should not be intoxicated at work, must be properly informed that it is a work rule, must know what sanction they may face for breach of the rule, and they must know when the rule becomes effective. The rule against alcohol intake must also be clear and unambiguous for example that no one may be intoxicated (or drunk or under the influence) at work or no one in specific work categories may have any alcohol in their blood while at work.


If the disciplinary code provides for the dismissal of an employee who reports for duty with more than 0% alcohol in their blood, the employer does not need to lead evidence to prove that the employee was drunk or intoxicated. However, the employer must then ensure that the person who administered the test testifies during the disciplinary hearing.


Where there is a rule, the rule must be captured in a policy and the employee must be aware of the rule/policy. In the absence of a policy and or disciplinary code, managing discipline in the workplace is not possible and there is no recourse for an employee’s misconduct.


The contract of employment

Despite best efforts to assist employers, employers may still find themselves in a position where an alcohol-related dismissal is found to be unfair because the employer failed to prove that the employment relationship could not be expected to continue.


The best solution to this is for employers to insert a clause in their contracts of employment in terms of which employees agree to be tested when so instructed by the employer. When the employee refuses to undergo a breathalyzer test, they are in breach of their contract of employment, which is a dismissible offense. The employer then does not have to prove anything as far as the use of alcohol is concerned.


Falsification

Is the unlawful and intentional making of a false document to the actual or potential prejudice of another. A document is not forged or falsified merely because it contains untrue statements. It is false when it purports to be something other than it is. Medical certificates are a favourite target of this type of misconduct. Same with qualifications, references, and permits.


Fraud

Defined as a wilful perversion of the truth made with intent to deceive and resulting in actual or potential prejudice to another. The intention to deceive is not sufficient and an intention to prejudice is required. Fraud consists of a false representation deliberately made with the intention of being acted upon by another to their detriment.


Fraud can take many forms, and the word includes any falsification of records, such as clock cards or medical certificates. If an employee presents a medical certificate that is obviously fraudulent, such as the date having been altered or something alike, dismissal even on a first offense would be justified. The falsification of an attendance register or timekeeping record would attract a similar sanction.


Fraud does not necessarily have to include an actual loss to the employer – it can also be a potential loss. The employer would need to gather evidence to show or establish that the employee acted in such a manner as to deprive the employer of something to which the employee was not entitled, or that the actions of the employee may have resulted in a future potential unlawful loss to the employer.


Criminal proceedings usually follow, but a dismissal will take place in terms of the company’s disciplinary code and not in terms of any criminal charges.


Bringing the employer’s name into disrepute

Employees are duty-bound to uphold their employer’s good name and reputation. Conduct that tends to bring the name of the employer into disrepute may therefore justify disciplinary action. Offensive behaviour towards clients or suppliers may be classified under this misconduct.


A charge of bringing an employer’s name into disrepute does not require proof of intention. Ensure that contracts of employment and or code of conduct expressively state that an employee is to be loyal to their employer and promote the business and reputation of the employer.


Insolence / Insubordination

A distinction is usually drawn between insolence (repudiation by an employee of their duty to show respect) and insubordination (refusal to obey an instruction), which fall within the generally accepted meaning of “insubordination”. Respect and obedience are implied duties of an employee, and the courts require employees to show a reasonable degree of respect and courtesy to their employers.


The court equates insolence with impudence, cheekiness, disrespect, or rudeness. Insolence would, however, only be a dismissible offense if it is particularly gross and is wilful and serious. Where this is not the case, the proper sanction would be a written warning in the first instance. The test is essential whether the employee intended to challenge the employer’s authority.


Insubordination presupposes a calculated breach by the employee of the duty to obey the employer’s instructions. Insubordination must be gross, that is, persistent and deliberate to justify a dismissal. The gravity of insubordination depends on several factors, including the action of the employer prior to the alleged insubordinations, the willfulness of the employee’s defiance, and the reasonableness of the instruction that was defied.


Refusal to work overtime

Although overtime is voluntary, an employer may require employees to work overtime in terms of a contract of employment. Refusal by an employee to perform contractual overtime may lead to disciplinary action. Employees are expected to work overtime during emergencies, but only on condition that the emergency is genuine.


Sexual harassment

Is defined as unwanted conduct which is persistent or serious and demeans, humiliates, or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to –

(a) sex, gender, or sexual orientation; or

(b) a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group.

Sexual harassment (or any form of harassment) is a serious matter requiring the attention of employers. If disciplinary action is taken against an employee, the employer must prove that the employee was guilty of that offense and hold a proper disciplinary inquiry.


A mere complaint is insufficient to prove the offense. The offense requires fault on the part of the accused employee. Employees can be found guilty of sexual harassment if they ought reasonably to have known that their conduct was offensive and unwelcome to the complainant.


Sleeping on duty

Employees may be disciplined for sleeping on duty only if:

(a) they are actually asleep at a time when they should be attending to their duties;

(b) the employee’s unconsciousness was not caused by something beyond their control;

(c) the employee was or should have been aware at the time that sleeping constituted an offense.


Whether the employee was indeed asleep is a factual question, to be determined from the evidence.


Employers often laugh at the expense of employees who have amazing explanations for their misconduct. The stories of employees who sleep on duty are no exception.

What if the employee claims that they were praying? In the absence of evidence and having versions that are both probable and without credibility challenges, it would be impossible on a balance of probabilities to determine a probable version to support a fair or unfair dismissal. Could this mean that sleeping on duty is a form of misconduct, but praying on duty is not? How are employers to deal with such a situation (without concrete proof of misconduct)?

Employees should be made aware of the fact that they are paid to work when they are on duty. No activity other than work will be tolerated during working hours, whether it be sleeping, meditating, praying, eating, or making/receiving private phone calls.


This should be reflected in the employer’s disciplinary code. An employee who is caught sleeping on duty should then be charged with sleeping or alternatively, praying on duty. If employees are not allowed to sleep on duty, surely one cannot expect employers to allow them to pray on duty? And depending on the position of the employee, praying on duty could be a dismissible offense.


Employees who need time off to pray should inform their employers about their religious (or cultural) beliefs to enable the employer to reasonably accommodate them.


Theft / unauthorised possession

Employees are guilty of theft if the appropriate goods belong to another with the intention of permanently depriving the owner of the use and possession of those goods. Theft, therefore, requires proof of intent to deprive the owner of use and possession and knowledge that the act was unlawful.


In most cases, it will be clear that an employee who removes goods from the workplace without authority intended to steal the goods; mere unauthorised removal of goods is enough to constitute theft. However, employees often offer novel excuses. In light thereof, the courts accept broader formulations such as “unauthorised possession of company property” or “unauthorised till procedures”.


Intimidation

The Labour Appeals Court holds that “one can intimidate a group as much as one can intimidate a single person and violence against the person of the party who is being intimidated is not a prerequisite. One can intimidate another by threatening to harm their loved ones or their business by injuring their workers”.


An example would be when an employee uses their cultural beliefs, like witchcraft, to endorse intimidation, scare, threaten, psychologically exploit, or create fear and panic in another person, their family, and possessions within the workplace. This causes grief and the behaviour amounts to serious intimidation and cannot be tolerated in the workplace. The reprehensible behaviour in attempting to use a shared cultural belief system to intimidate a colleague is unacceptable and will most definitely break down a relationship of trust and cordiality that exist between an employer and an employee and between an employee and their colleagues.


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