What Is Workplace Misconduct and What Are Its Consequences?achkarlaw-admin
Workplace misconduct can range from employee behaviour that is impolite, immoral or dishonest to outright illegal. Committing workplace misconduct, such as habitual neglect of duty or willful disobedience to an employer’s instructions can have serious consequences for employees.
The consequences for workplace wrongdoing can vary depending on the intensity and impact of the behaviour. If an employer receives a complaint or otherwise becomes aware of employee misconduct, certain duties arise. Employers must consider a variety of factors before deciding what actions to take against the offending employee.
How should an employer determine whether an employee has committed misconduct? What steps should an employer take after receiving a complaint? What are the consequences of workplace misconduct? This article answers these questions and explains how an employment lawyer can help.
Identifying Workplace Misconduct by an Employee
Some common examples of employee misconduct include the following:
- Absenteeism or coming late to work;
- Poor performance and incompetence;
- Bullying, harassment, and physical assault;
- Theft, fraud, and embezzlement; and
- Stealing and misusing an employer’s confidential information.
After becoming aware or receiving a complaint about employee wrongdoing, the employer should begin an investigation as soon as possible. During the investigation, the employee should understand the allegations against them, and be provided a fair opportunity to present their side of the story.
The workplace investigation should be conducted by a neutral party, and they should keep thorough records of their investigation. The parties involved should be informed of the appropriate procedure and findings of the investigation. Evidence should be requested and produced as necessary.
The investigation procedure must not discriminate against any party involved. Until a proper investigation determines whether the employee engaged in misconduct, the employer can take immediate steps to maintain the peace and safeguard the organization.
While it may seem straightforward to determine misconduct, it is always best to consult with an employment lawyer to help you navigate the investigation process and determine your legal rights.
What Can the Employer Do About Employee Misconduct?
An employer has a duty to its employees to provide a safe working environment and may have to make temporary arrangements while a misconduct investigation is underway to meet that obligation.
Some immediate steps the organization may take include moving the worker in question from one location to another, having them report to a different manager, or having them work remotely until the investigation is over. An employer may also suspend their employee with or without pay.
Employers should be mindful that disciplinary actions and suspensions may result in a claim for constructive dismissal and paying an employee severance pay. It is always best to consult with an employment lawyer to determine the best course of temporary action against an employee pending a misconduct investigation to minimize legal risks.
While there are some circumstances that allow for an employee’s suspension, employers do not have implied authority to suspend an employee indefinitely. If an employer feels that the suspension is appropriate, they should make sure that the suspension is reasonable and justified.
It is best to consult an employment lawyer whether you are an employer handling an allegation of misconduct or an employee being complained against. An employment and Human Rights lawyer can help an employer navigate the process and reduce exposure to legal liability. They can also assist an employee through the process and advise about any potential claims.
Disciplinary Responses to Workplace Misconduct
If the investigation finds the employee committed workplace misconduct, the employer should take disciplinary action. The employer should follow appropriate procedures and protocols in disciplining the employee. However, complying with a discriminatory or inappropriate policy may increase legal risks for the employer.
Generally, before officially documenting misconduct, employers issue verbal warnings to employees and allow them an opportunity to improve. If an employee’s conduct does not change after receiving verbal warnings, then written warnings are usually the next step.
Written warnings should be kept in the employee’s file and include as much detail as possible. They must explain the employee’s conduct or actions, the policy they violated, company expectations, how the employee can improve, and the next steps the employer will take if the behaviour occurs again.
Depending on the circumstances, the employer may issue multiple written warnings before moving on to other disciplinary measures. Common disciplinary measures include the following:
- A Performance Improvement Plan, or PIP;
- Additional written warnings;
- Mandatory training or education courses; and
- Suspensions with or without pay.
The employer can choose to summarily dismiss the employee who engaged in one or more instances of misconduct. This is also known as a termination with a cause or a just cause dismissal. In Ontario, employers who have cause to terminate an employee may only owe the employee’s minimum termination and severance entitlements under the Employment Standards Act, 2000 (the “ESA”), or potentially no severance at all.
Given the severity of alleging cause for an employee’s termination, it is considered the disciplinary of last resort. An employer must be prepared to show a Court they took all reasonable measures and have significant evidence supporting their allegation of cause for the employee’s dismissal.
In Ontario, the Courts look at all the surrounding circumstances to determine if an employer has cause to terminate an employee. Factors a Court may consider include:
- The employee’s length of service, and history with the employer;
- The specific nature of the misconduct, and the extent of harm caused to the employer;
- The manner in which the employer conducted its investigation, and treated the employee during that investigation;
- The availability of other disciplinary action that could have proportionally and reasonably addressed the employee’s wrongdoing;
- The impact of a just cause termination on the employee; and
- The reasonable possibility that the employment relationship is reconcilable, and whether an employer can reasonably trust the employee moving forward.
Employers should be mindful that terminating an employee with a cause or engaging in workplace disciplinary action must not be discriminatory, unreasonable, or deceitful. Alleging just cause in bad faith to simply deny an employee their severance could result in additional damages against an employer.
Employers should give the employee accused of wrongdoing some benefit of the doubt where possible, especially if their alleged misconduct is related to a disclosed disability or other protected ground under the Ontario Human Rights Code. Failure to address such concerns and make efforts to accommodate the employee to the point of undue hardship could result in Human Rights damages against an employer in addition to severance.
Given the risks involved, employers should avoid disciplining or terminating an employee with cause for any misconduct before consulting with an employment lawyer. Even in the best of cases where misconduct appears as obvious grounds for cause, making mistakes in the way an employer investigates, disciplines, or terminates an employee can result in legal liability for severance pay, general damages, and an employee’s legal costs.
A wide range of an employee’s actions can amount to misconduct in the workplace. Once an employer becomes aware of employee misconduct, they have a duty to investigate and keep other workers safe where necessary.
Employers should ensure they investigate allegations of misconduct against an employee properly and take disciplinary action that is proportionate to the misconduct. Where misconduct is repeated or severe, an employer has the option of dismissing an employee with cause.
An employment lawyer can help both employers and employees determine their legal entitlements, negotiate a workplace dispute surrounding allegations of misconduct, and navigate the legal process where necessary to achieve their desired result. Each case of employee misconduct and the availability of cause is fact-specific, requiring tailored-legal advice to achieve desired results.
Contact Achkar Law
If you are an employer or an employee with questions about your legal obligations and entitlements at any stage of a workplace misconduct dispute, our team of experienced workplace lawyers at Achkar Law can help.
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