Misconduct & Dishonesty

The under-performing chairperson

The Chairman of a hearing did not fire an employee charged with a conflict of interest as he felt there was not enough evidence. The employer did some further investigation and found more and new evidence.  We were asked if a new hearing could be convened or is this double jeopardy?


The employer felt that the chairperson of the hearing did have enough information to fire, and now wants to discipline the chairperson for negligence or poor performance.  What advice would you give?



Searching for Evidence

The Internet, Search Engines & The Dishonest Employee

It need not be said how popular the internet is today, nor does it need to be said what a crucial tool this is to just about any business enterprise. What is not so well known though is the latent power that lies in the hands of the employer,

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Bad employees won't become good ones!

There are number of truths in employment.  This body of learning is known universally as the 'Levy Laws of Labour'.  The laws are numbered, and from time to time are added to, but one of the early laws - somewhere around number three or four is the axiom that bad employees don't become good employees.

What this simply means, is that if you have cause to dismiss an employee who has a bad record, and been nothing but trouble, then you should do it, becauseif you baulk at the task, the employee will simply need to be dismissed later, as he won't change in attitude or conduct.

Inevitably, the subsequent dismissal becomes more difficult and more complex, and turns out to cost more in time and money.  This is often a case where the employer ends up throwing good money after bad, so to speak.

This is not to suggest that employees who err should not be given a chance to improve or mend their ways, but simply to say, that if an employer is satisfied that the employment relationship has no future, then it is better to end it sooner rather than later.


Differences between Poor Performance and Misconduct

There is a difference between misconduct (behaviour) and ability (performance), but it is worth summarizing the difference between the two because there is often confusion as to what is a performance problem and what is a behaviour problem.

This confusion may arise because the end result of an employee performing poorly or behaving badly is often the same - he or she may lose the job. However, although the result may be the same in each case, the two categories are different, and require different handling.

Misconduct or unacceptable behaviour occurs when a rule is broken, or an employee behaves in a manner which is unacceptable. For example, an employee who assaulted a supervisor, or who swore at a customer would be guilty of misconduct. This would  be true even if there wasn’t a specific rule in the company procedure forbidding this, because it must be obvious to every employee that this type of behaviour is not allowable in the work situation, i.e. you don’t assault people at the work place and you don’t abuse customers.

Another comparison may help. Consider the case of your star employee - She performs well, her rate of output is first class, quality is never a problem, but she is caught stealing. Is this performance or misconduct? The answer is clearly misconduct. She has broken the rules and may be liable for dismissal, even though her performance is excellent.

Similarly, the office clerk who is always up-to-date and accurate with his work, but who treats and talks to other staff members in a rude, abusive and racialist way, is behaving in an unacceptable manner which would be categorized as misconduct.

The breaking of a specific rule, such as, “no employee may clock in for another employee” or “no employee may smoke in the plant” would also be misconduct.

Unacceptable behaviour and misconduct usually results in us taking immediate disciplinary action against the employee, whilst poor performance will usually result in us counseling the employee before we take any action.

Poor performance is not always a result of the deliberate action of the employee. Obviously if the fault lies elsewhere, it is not a matter for discipline.

What is the same for both is that we have to follow a fair procedure before taking disciplinary/remedial action.

The procedure for handling performance problems is usually different from the procedure for handling problems of misconduct. Ensure that you know what the procedures are in your company!

The Test is simple:

1. Performance is about how the employee does the job and what output he or she achieves.

2. Misconduct is about the behaviour or conduct of the employee on the job in relation to the rules of the company. It is not about the performance of the employee or the output which he or she achieves on the job.

Use this simple test whenever you are not entirely sure whether the problem is one of misconduct or a matter of poor pro forma employee’s actions (or non action). An employee might not be to blame if he or she has sub-standard tools and equipment.

Out of This World

Recently, an employee at a hearing for unauthorised absence explained his misconduct by claiming that he was on the way to work when he was kidnapped by aliens.

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