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Pass this 'Fairness Test' before dismissing an employee for misconduct

by , 11 April 2016
Do you want to dismiss an employee?

And you probably have a few reasons you want to do this. And dismissal for misconduct could definitely be on that list of reasons.

Wanting to dismiss an employee for misconduct basically means that you want to dismiss him because he's broken a company disciplinary rule, which he clearly knew about.

Classic examples of misconduct include gross dishonesty, wilful damage to property, the wilful endangering of others' safety, physical assault of co-employees, customers, clients or even you, and gross insubordination.

But it's worth noting that before you can dismiss an employee for misconduct, you'll need to pass the fairness test, otherwise your whole dismissal could be unfair.

So, to see if a dismissal for misconduct is fair, make sure you can answer the following 2 questions...

*****MUST HAVE*****

Everything you need to know about substantively and procedurally fair disciplinary hearings
 
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
 
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
 
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
 
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
 
But not you! Here's why…
 
**********************
 
Question#1: Did the employee, in fact, break a rule or standard which regulates conduct in your workplace?

For example, your employee assaulted another. And your disciplinary rules clearly ban this type of behaviour.

Question#2: If a rule or standard was in fact broken, was it a valid and reasonable rule or standard?

Using the above example of assault in the workplace, it could definitely be argued that a rule banning such behaviour is valid and reasonable. This is because it maintains a safe and peaceful work environment for all employees.

What's more, you should be able to show the employee was aware of that rule, or there was a reasonable expectation that he would've been fully aware of it before and during the assault.

In the above example, you can easily argue that knowing assault is completely banned springs from common sense.
 
REMEMBER: You must make sure you apply your rules consistently among all employees before dismissing. For example, if you let an employee go on a warning for assault, but dismiss the next employee for a first-time assault, it will be inconsistent and possibly unfair.
 

*To learn more on dismissing employees for misconduct, go to Chapter D 01 in your Practical Guide to Human Resources Management handbook.

If you don't already have this indispensable resource, click here to order your copy today. 


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