Gross Misconduct-What this Really Means?
- hrstrongpowerbyRachel
- May 20, 2021
- 4 min read
1. GROSS MISCONDUCT-
Oh boy, this has been on my mind for a while. If there is a subjective definition that is Gross Misconduct’s. If we go to the literal interpretation of this concept we can break it down in 2 parts; Gross, which means serious or very serious, and misconduct, which is a conduct, by action or omission, that happens at the workplace and breaches a disciplinary code, moral values and/or the law.
1.1 Definitions
Some of the definitions that I found while researching are:
“Unacceptable or improper behavior of a very serious kind, especially by an employee or professional person”.
“This behavior (gross misconduct) is unprofessional and unethical, falling short of regular standards in the typical workplace…Conduct this severe destroys the relationship between employer and employee and warrants dismissal without notice and without pay in lieu of notice”
“…the term generally refers to severe negligence or willful conduct that is violent, unlawful or has the potential to severely harm a business. Repeatedly violating office policies may also be considered gross misconduct.”
“Intentional behavior is needed to support a finding of gross misconduct. An act which deliberately or willfully threatens the employer's rules, or shows a repeated disregard for the employee's obligations to the employer or disregards the standard of behavior which an employer has a right to expect of its employee", [Giles v. District of Columbia Dep't of Empl. Servs., 758 A.2d 522, 525 (D.C. 2000)]
As you can see all these definitions have a subjective component because it is up to the employer to say what is immoral, unethical, violent, or has the potential to damage the Company’s business or image.
1.2 What About Jamaica
Within our legislation I found the word misconduct in two (2) legislative bodies. The Labor Code 1976 and the Termination and Redundancy Payments Act 1974 (could be allude in other statues).
The Labor Code prescribes on Part VI “Grievance, Dispute and Disciplinary Process” Section 22 (iii) (b) that no employee should be dismissed for the first offense except in the case of gross misconduct.
On the other hand, the Termination and Redundancy Payments Act 1974, Part II “Minimum Period of Notice and Right to Certain Facilities”, Section 5b), states:
“...if an employer does not terminate a contract of employment without notice during the first four weeks after he becomes aware of conduct by the employee by reason of which the employer has a right to terminate the contract without notice, he shall not thereafter terminate the contract without notice by reason of that conduct”
This second reference to the term misconduct is implicit because the term is not explicitly mentioned; however, the concept is outlined (sort of) … “a conduct that enables the employer to terminate the contract of employment without notice”
These statutes are telling us two important things, 1- Is legal to terminate an employee due to gross misconduct from the first offense and 2-If the employee is not terminated within 4 weeks from the time the employer is made aware of the gross misconduct then notice pay would have to be paid when terminating the relationship. Failure to pay notice after the 4 weeks aforementioned could lead to a law suit for Wrongful Termination.
1.3 Amendment to the Labor Relations and Industrial Disputes Act 1975 (LRIDA) in 2010
This amendment to the LRIDA provides that unsettled individual disputes before the Ministry may be referred to the Industrial Disputes Tribunal for adjudication, where the principles of natural justice and due process would govern the arbitrator’s decision.
Before the amendment to the LRIDA in 2010 where non-unionized employees were unable to access the IDT, the main focus from employers was in drafting employment contracts with clear termination clauses (with and without cause) and clear definitions of gross misconduct; all they had to do was terminate the employment following what was agreed on the contract and that was it, fairness of the decision did not come into question. The definition of the misconduct as gross or not would determine if notice or payment in lieu of notice had to be made.
Now that all employees have access to the IDT once referred by the Minister of Labor, I wonder if it is still relevant if the reason of the termination was gross misconduct or not. According to the Labor Code summary dismissals should not occur and all employees must be given the opportunity to respond to the allegations and have a fair hearing where principles of natural justice and due process are observed irrespective of the nature of the alleged misconduct.
1.4 My Opinion
A misconduct can be classified as gross or very serious when it damages the trust element of the employment contract in a way that cannot be rebuilt. If we agree that trust (reliance, dependence) is the foundation of the employment contract (employees trust that employers will honor the employment contract and that their wellness and safety will be protected and employers trust that employees will perform their duties to the best of their abilities without making any actions which jeopardize the business’ continuity) then any action that breaks that trust would be directly affecting the agreement itself. Employers have the liberty to define in their Disciplinary Code and /or contract of employment what conducts are considered gross misconduct according to their industry; for instance, failure to hand wash regularly in the food industry might be a gross misconduct while in the financial industry might not even be an offense, at least not before COVID 19. Some of the common conducts considered gross misconduct are:
• Fighting or making violent threats in the workplace.
• Stealing or vandalizing company property.
• Falsifying personal information or work history.
• Repeated tardiness or absences.
• Chronic insubordination.
• Sexual harassment or creating a hostile workplace for other workers.
Defining if the transgression is gross or not is not so relevant as before 2010. These times demand much more from employers than just ensuring that notice is given or paid in lieu when applicable. Employers must afford dignity to all employees and due process must be followed before terminating the employment relationship.
References
Labor Code 1976
Labor Relations and Industrial Disputes Act 1975
Termination of Employment and Redundancy Payment 1974
SUPREME COURT OF JUDICATURE OF JAMAICA, CIVIL DIVISION CLAIM NO. 2011HCV05274 BETWEEN RYAN ANSLIP CLAIMANT AND NORTH EAST REGIONAL HEALTH AUTHORITY DEFENDANT
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