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Species of misconduct: jungle out there, zoo in here

Peter McDermott

Misconduct can be best described as employees not adhering to the employer's rules and policies and, as a consequence, risking dismissal. This behaviour is normally deliberate and isn't because of circumstances beyond the employee's control. To discipline – and possibly dismiss - an employee for misconduct, you must prove a number of factors.

Want to discipline or possibly dismiss an employee for misconduct?

Make sure you prove these four things first:

1. The employee contravened an existing rule or standard,

2. The rule was valid and reasonable,

3. The employee was aware (or could reasonably be expected to have been aware) of the rule or standard, and

4. You've consistently applied the rule or standard.

It's vitally important to charge employees with the correct or suitable form of misconduct as a guilty finding may be overturned as being unfair and prove very costly to you if an employee was charged incorrectly - guilt or innocence notwithstanding.

Below are some of the most common forms of misconduct.

1. Unauthorised absence from work requires no explanation. However, often employees will be absent without leave because of circumstances beyond their control, such as late public transportation or a medical emergency.

Even assuming that these circumstances are genuine, the employee may be expected to stick to the rule (if such rule has been established) that they inform management of their intended absence so the leaders of the organisation can make alternative arrangements.

2. Insubordination is one of the forms of misconduct for which dismissal is an appropriate sanction as a first-time offence. This is assuming that the insubordination is serious and deliberate.

What is insubordination?
Experts define 'insubordination' as a calculated breach, by the employee, of the duty to obey the employer's instructions. Such an instruction, of course, has to be lawful and reasonable to start with.

3. Abscondment and desertion are distinct from absence without leave as an employee who absconds has no intention of ever returning to work. Generally speaking, an unexplained absence of three or more days is grounds for the employer to embark on abscondment procedures. Dismissal is justified if the employer invites the employee to a disciplinary inquiry to explain the absence.

In Siswana v Charles Thomas t/a as Thomas Restoration (2007) 1 BALR 12 BCFMI, the court confirmed that an employer must attempt to contact the employee at the employee's last-known address.

4. Negligence and dereliction of duty are often confused:

  • Negligence implies that an employee didn't satisfactorily complete the task at hand while a reasonable person in that employee's shoes would've acted appropriately.
  • Dereliction of duty is a wilful act or omission, by the employee, resulting in the employee's duties not being fulfilled.

    In Maronganye vs Power Process System (2007) JOL 20234 (MEIBC), the court found that an employer is entitled to set its own standards of behaviour in the workplace. In most cases, the objective reasonableness (or lack thereof) of any sanction will determine if it's justified.

    However, the employers who've drafted their own disciplinary procedures should take care not to deviate from the proscriptions of those procedures. Solidarity obo Kritzinger Pae / Sasaol In frachem 2008 JOL 21905 (NBCCI) made clear that doing this will make the sanction substantively unfair.

Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions