Gross misconduct refers to an employee’s actions or behaviours that are so severe that they warrant immediate dismissal without notice or pay in lieu of notice. These actions must be so serious that they essentially destroy the trust and confidence between the employer and the employee, making it impossible for the employment relationship to continue.
Examples of Gross Misconduct
Some common examples of gross misconduct include:
- Theft, fraud, or dishonesty
- Physical violence or threats
- Harassment or bullying
- Intoxication while on duty
- Breach of confidentiality
- Falsifying records or documents
- Serious insubordination
It is important to note that this list is not exhaustive and that other actions and acts may be serious misconduct in some circumstances.
Consequences of Gross Misconduct
If an employee is found to have committed serious misconduct, the employee may be terminated immediately, sometimes referred to as summary termination. This can have serious consequences for workers, including loss of income and damage to their professional reputation.
The Dismissal Process
Even in cases of gross misconduct, employers must follow a fair and transparent process before dismissing an employee. This process typically involves three key steps:
Investigating the Allegations
Employers must conduct thorough investigations into allegations of serious misconduct. This may include interviewing employees, witnesses, gathering relevant evidence, etc. Employees should be informed of allegations against them and allowed to comment.
If the investigation suggests that there may be grounds for dismissal, a disciplinary hearing should be held. At this hearing, the employee should be allowed to present their side of the story, ask questions, and present any evidence or witnesses in their defence.
Outcome and Appeals
After a disciplinary hearing, the employer must decide whether to fire the employee or impose lesser sanctions, such as a written warning. Employees must be informed of decisions and allowed to appeal if they disagree with the results.
Unfair Dismissal Claims
Employees who believe they have been unfairly dismissed due to gross misconduct may file an unfair dismissal claim with the Workplace Relations Commission.
Grounds for Unfair Dismissal
An unfair dismissal claim may be based on several grounds, such as:
- The employer failed to follow a fair dismissal process
- The employee was dismissed for reasons unrelated to gross misconduct
- The employee was treated less favourably than others in similar situations
Filing an Unfair Dismissal Claim
To file an unfair dismissal, an employee must complete a Labor Relations Complaint Form within six months of the dismissal. In certain circumstances, this period may be extended by him to 12 months. The Workplace Relations Commission will then investigate the allegations and may order a hearing to determine the lawsuit’s merits.
If the Workplace Relations Commission finds that an employee has been unfairly dismissed, they may order one or more of the following remedies:
- Reinstatement of the employee to their former position
- Re-engagement of the employee in a different position
- Compensation, which may be up to two years’ salary
Tips for Employers
To minimise the risk of wrongful termination lawsuits and ensure a fair trial when dealing with serious misconduct, employers should consider the following:
Creating a Clear Company Policy
Employers should have a clear and accessible policy outlining what constitutes gross misconduct and the potential consequences. This policy should be regularly reviewed and updated as necessary.
Employers should document any incidents of gross misconduct, including the details of the allegations, the investigation, and the disciplinary process. This documentation can be crucial in defending against any unfair dismissal claims.
Training and Communication
Employers should provide regular training and communication to employees regarding company policies, expectations, and the consequences of gross misconduct. This can help prevent incidents and ensure that employees are aware of the potential consequences of their actions.
Gross misconduct is an employee’s actions or behaviours so severe that they warrant immediate dismissal without notice or pay in lieu of notice. Examples include theft, fraud, physical violence, harassment, and serious insubordination.
Employers must follow a fair and transparent process for investigating allegations, holding disciplinary hearings, and allowing employees to challenge the results.
Employees may file an unfair dismissal complaint with the Workplace Relations Commission within six months of termination by completing the Workplace Relations Complaint Form.
If an employee is found to have been unfairly dismissed, the Workplace Relations Commission can order reinstatement, reinstatement, or compensation of up to two years’ salary.
Employers should establish clear company policies, document incidents, and regularly train and inform employees about the prospects and consequences of serious misconduct.