WEEK 9: DISMISSAL AS A RESULT OF MISCONDUCT EMPLOYMENT LAW WEEK 9: DISMISSAL AS A RESULT OF MISCONDUCT

LEARNING OUTCOME The students will be able to; 1 Discuss the issue of dismissal as a result of misconduct(C4,P2, LL,)

Introduction Misconduct by employees may take place at the workplace during working hours and it may occur outside the workplace. In order to reduce misconduct, the company must have clear rules and policies on disciplinary action. These policies must be; - Communicated to all employees; - Current and relevant - consistently upheld.

Disciplinary action Section 14 of the Employment Act givers employers the right to punish employees for misconduct. The punishment includes dismissal, downgrading, suspension without pay for a maximum of 14 days as well as merely a warning.

When is disciplinary action taken? When a worker disobeys rules set by the employer, or his behaviour is unacceptable, i.e. he commits misconduct When a worker’s job performance fails to meet reasonable standards.

Minor and major misconduct Employers have the right to dismiss an employee who is guilty of committing a major misconduct. However, problems may arise as to whether a particular act is major or minor misconduct. However, repeated acts of minor misconduct can lead to termination of an employee’s contract of employment.

Examples of misconduct Tarnishing the employer’s image. If an employee acts in some way outside the workplace which the employer considers as tarnishing the company’s image, there may be a case for dismissal. Where an employee is expected to be a role model and has failed to be a role model, a dismissal is to be upheld even without proof of hurt to the employer.

2. Absence without permission. Section 15(2) of the Employment Act; “An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence. However, the employer should not terminate the employees’ service without making effort to discover the reason for his absent.

Abuse of computers and communication devices. Swiping another employee’s attendance card. Conflict of interest. Drug and alcohol abuse Gambling on company premises Refusal to follow orders or procedures Negligence or carelessness Safety and health violations Sexual harassment Theft Violence and fighting Frequent illness

15. Discharge on the ground of committing crime Two types of crimes; Involve the employer Not involve the employer at the work place. In the second type of crime- depending on the contract of services. If in the contract stated that the employer can terminate the services if he commits any crime, the employer can do so. If it is not stated in the contract- depends on the seriousness of the offence. Sometimes, if the employer is imprisonment for long period, justify the termination.

If the crime involving the employer and happened at the workplace, the employer must conduct the domestic inquiry even before the hearing. If the decision of the domestic inquiry is dismissal, the employer can terminate the employee even if the Court found that the employee is not guilty.

PROCEDURES FOR INVESTIGATING MISCONDUCT Conduct a preliminary investigation To see whether the proofs exists and whether it is sufficient for the employer to take action against the employee concerned. 2. Conduct domestic inquiry

Domestic inquiry It is a formal hearing held by an employer before an employee is dismissed on the grounds of having committed misconduct, or before any other major penalty is imposed. The employer’s right to dismiss is limited by two requirements; a) procedural requirements- employees must be treated fairly and justly b) Substantive requirements, i.e. Employees should not be punished without sufficient proof of their guilt.

Circumstances where no domestic inquiry is needed 1. Retirement 2. Retrenchment 3. Breach of contract 4. Frustration of contract 5. Non-confirmation of probationer 6. Dismissal for poor performance 7. Dismissal for misconduct where employee admits guilty.

During domestic inquiry The employer may suspend the employee from work for a period not exceeding two weeks but shall pay him not less than half his wages for such period: Provided that if the inquiry does not disclose any misconduct on the part of the employee the employer shall forthwith restore to the employee the full amount of wages so withheld.

The principle; 1. The panel must be as neutral, unbiased and fair as possible and not directly involved in the case. 2. The employee must be informed in advance by giving notice when and where the domestic inquiry is to be held. 3. The employee must be informed of his alleged misconduct. 4. The employee must be informed of the decision of domestic inquiry held.

Consequences of not holding a domestic inquiry Without a domestic inquiry, a dismissal for misconduct is automatically without just cause or excuse. The Court will require an employer to prove that he had adequate reasons to dismiss and that he has adequate evidence. If a valid and fair domestic inquiry had been held at the time of dismissal, the court will only read the report to determine whether the panel has made a reasonable decision. If they have, it is unlikely that the Court will interfere with the decision.

If the employee is a member of trade union, he can be represented by the trade union. An employee has no right to be represented by a lawyer at a domestic inquiry. If the employee failed to attend the inquiry, the employer can dismiss him. The letters of dismissal must not be signed by the chairman of the domestic inquiry but by the chief executive officer of the organization.

Internal Appeal Systems An internal appeal system is not an essential requirement for a fair dismissal system. However, there is nothing wrong with having such a system. The employee can appeal to an authority higher than the officer who signed the dismissal letter.