Workplace Wilful Misconduct
What is workplace wilful misconduct?
Wilful misconduct occurs when an employee engages in wrongful, improper, or unlawful conduct in the workplace on purpose. Wilful misconduct can range from the minor, such as horseplay, to the very severe, such as sexual harassment. Insubordination (when an employee disobeys a legitimate instruction from their employer) is also considered to be wilful misconduct. Wilful misconduct is something most employers wish to rid their workplace of, but the correct cost-minimizing strategies can be subtle and not intuitive.
Is wilful misconduct considered to be "just cause" for termination?
It can be. Wilful misconduct that is not trivial and has not been condoned by the employer can be grounds for a just cause termination . However, a court or tribunal will consider each case on its own merits.
How should employers handle wilful misconduct?
Usually, the most important advice we can give to employers for dealing with workplace misconduct is to discipline employees, early and often. Discipline should be in writing (not just verbal), and it should provide a clear warning to employees that the misconduct will not be tolerated, and that repeated instances can lead to termination for cause.
What sort of wilful misconduct is "trivial"?
In truth, most forms of wilful misconduct (excluding serious actions) are relatively trivial, unless the employee has received prior warning for the same conduct. Misconduct is certainly not trivial if the employee has been clearly warned that the behaviour could be cause for termination. For this reason, it is important that employers make it known to employees which conduct is acceptable - and which is not.
When is wilful misconduct "condoned" by the employer?
Wilful misconduct is condoned if it is allowed to continue without discipline. Misconduct can also be condoned if an employee receives exactly the same discipline for the same recurring misconduct. For example, if an employee only ever receives verbal reprimands for repeated misbehaviour, the employee might develop a reasonable expectation that this is the worst the discipline will ever get.
What if we have disciplined an employee, but the misconduct continues?
If an employee flouts prior discipline and continues his or her misconduct, it is time to consider progressive discipline. Progressive discipline means that the severity of the discipline increases with each repeated offence, up to the employee's eventual termination for cause. Progressive discipline is important for sending a strong message to employees. In fact, using the same discipline for repeated offences of the same nature can be viewed as condoning the conduct, since it might imply that the discipline will never become more severe.
Should we terminate an employee for "just cause" on account of their wilful misconduct?
That depends on the specific set of circumstances. Sometimes, a better alternative is to suspend the employee without pay or terminate the employee without cause. If you are considering terminating an employee for just cause on account of wilful misconduct, we strongly recommend contacting an experienced employment lawyer for advice on your specific situation. Terminating an employee for just cause can be inflammatory and ultimately costly - even if you are well within your right to do so.
What can Hyde HR Law do for my company?
The lawyers at Hyde HR Law are experts in wilful misconduct. We advise our employer clients on what policies they ought to establish and use our expertise to design policies that are tailored to each workplace; we provide expert legal advice based upon the specific circumstances of the employee misconduct, including when to terminate for just cause; and we vigorously defend our employer clients in legal proceedings arising out of just cause terminations. Contact us today.