Unravelling employee misconduct

Dismissing or terminating an employee is a serious matter that has consequences far beyond the simple loss of income or job. It can have ramification on the outlook of an organisation, which is why courts and other labour institutions are so keen to ensure that an employee is given fair procedures and natural justice.

Before deciding on the most appropriate course of action to take when performance or conduct becomes an issue, it is critical to use a thorough disciplinary process so that you reduce any legal risk to the business and ensure fairness for the employee and any other persons involved.

Before preferring any disciplinary process, it is essential to hold a preliminary inquiry to know if a prima facie (based on the first impression) case of indiscipline and misconduct exists. In so doing, the following steps are critical.

1. Investigation of the alleged misconduct

When an employee is performing below expectations, gathering objective evidence that explains your concerns is undoubtedly the first place start. If, for instance, a manager is underperforming, you will need to prove that targets were set and the same communicated to him, and that performance has fallen short of the mark.

Where an employee is accused of theft or negligence leading to theft or destruction of employer’s property, proper investigations must be done. In some circumstance an employer may need to put the employee on suspension pending investigation.

2. Issue a charge sheet

Once the prima facie case of misconduct is established, the management should proceed to issue a charge sheet to the employee. However, where the charges are serious as would attract criminal charges, a suspension order may be served on the employee along with the charge sheet.

Charge sheet is merely a notice of the charge and provides the employee an opportunity to explain his conduct. Therefore, charge sheet is generally known as a show cause notice. Each charge should be clearly specified. There should be a separate charge for each allegation and charge should not relate to any matter, which has already been decided upon.

Also critical is to notify the employee in writing that there will be a meeting, during which their performance and/or conduct will be discussed.

3. Consideration of response

On receiving the answers for the charge sheet served, the explanation furnished should be considered and if it is satisfactory, no disciplinary action needs to be taken. On the contrary when the management is not satisfied with the employee’s explanation, it can proceed with full-fledged enquiry.

However, if the employee admits the charge, the employer can warn him or award him punishment without further enquiry.

4. The hearing process

Where management is not satisfied with the explanation offered by the employee, they can proceed to convene a body of enquiry or disciplinary hearing.

The person appointed to chair the hearing should issue a notice to this effect and the same be given to the concerned employee. The principle of natural justice must be followed throughout the hearing. The employee should not be denied the chance of explaining himself or herself.

The enquiry body should give sufficient notice to the employee so that he may prepare to present his case and make submission in his defence. The enquiry officer should proceed in a proper manner and examine witnesses. Fair opportunity should be given to the employee to cross-examine the management witnesses. It is very important for the management to record the minutes of the disciplinary hearing without which it would be difficult to prove there having been any hearing.

5. Outcome of the hearing

The final stage upon proof of misconduct is to consider an appropriate disciplinary measure to be taken against the employee. This may include a warning, dismissal or suspension.

While deciding the nature of disciplinary action, the employee’s previous record, and precedents and or effects of the action on other employees, have to be considered. When the employee feels that the enquiry conducted was not proper and the action taken unjustified, he must be given a chance to make appeal.

The writer is Partner at Latent & Associate Consultant.