How to Handle Gross Misconduct in the Workplace

As leaders, it’s important to understand what gross misconduct is and how to moderate and manage it to help protect your employees. Failure to ensure rigid and consistent guidelines about what is and isn’t acceptable at work can create an unbalanced and unwelcome workplace and also affect your business’s reputation.

In Canada, 47% of women and 31% of men have reported facing some form of workplace harassment—a form of gross misconduct—with those aged 25 to 34 experiencing the highest rates. While this statistic may be unsettling, employees and HR leaders can help mitigate some instances of gross misconduct with the right preparation.

In this guide, we’ll define gross misconduct, explore why it’s vital to investigate and properly manage instances and cover ways you can be prepared.

What is gross misconduct?

Gross misconduct is any unethical and unprofessional behaviour an employee engages in. Though individual businesses may define the term differently, gross misconduct in the workplace generally involves serious actions that threaten the safety, health, and reputation of employees and the organization.

Not only can gross misconduct harm one’s relationship with their fellow employees and employer, but it can warrant instant dismissal from their job—even if the behaviour is their first offence.

Employers should discuss what constitutes gross misconduct and its repercussions in their employee handbook or employment contract. This protects companies in the event they do let an employee go and indicates that both parties have agreed to the gross misconduct terms. This means that the business has the right to dismiss a worker if they breach those terms.

Defining what constitutes gross misconduct in writing also helps employees understand what is expected of them and what would cause immediate termination of their employment.

What are examples of gross misconduct?

Gross misconduct involves several actions that can threaten the health and safety of fellow employees. They include, but aren't limited to:

• illegal drug or alcohol use at work
• theft
• vandalization of company property
• sexual harassment/assault
• fighting and/or making violent threats in the office
• repeated tardiness or absences
• data or information breaches
• fraud.

Each company may define gross misconduct differently, but definitions and examples will also depend on provincial laws. Some examples of more subjective instances of gross misconduct that may vary by business include:

• Insubordination: defying authority or refusing to follow orders.
• Sabotage: when someone intentionally undermines another’s efforts or reputation.
• Conflict of interest: for example, working for a competitor or setting up a competing business.

What is the difference between misconduct and gross misconduct?

While gross misconduct is serious enough to fire an employee on their first offence, misconduct, though still consequential, does not result in such severe consequences. While employees may face repercussions for misconduct, they are likely to remain employed, especially after the first offence.

Examples of misconduct can include:

• being tardy to work
• submitting lacklustre or incomplete work
• being rude toward colleagues and clients
• using company equipment for personal use without permission from management.

Misconduct typically involves a warning and a verbal or written reprimand from the employer. Repeated cases of these behaviours can be considered gross misconduct and result in termination.

As the lines between misconduct and gross misconduct can often blur, it’s best to discuss them with your HR team and clearly differentiate them in your employee handbook. Having a well-defined protocol can also be useful for categorizing certain behaviours in case a unique circumstance arises that is not explicitly listed in the handbook.

Please note, though, if an employee’s behaviour is not listed in your policy, you may not be able to prove it as gross misconduct. This means that investigations may not be founded, and you may be unable to dispute their unemployment benefits.

Gross misconduct termination

Based on the investigation, you and your HR team can decide whether to fire the employee for gross misconduct. However, if an employee files an unjust dismissal complaint, an adjudicator under the Canada Labour Code must then determine how serious the misconduct was and whether their actions warranted termination.

Employers can dismiss employees at any time by issuing a written termination letter. This should be a brief statement that explains why they are being terminated and any entitlements or payments owed to them. However, before the dismissal, you need to follow a progressive discipline process to make sure the actions you’re taking are fair and warranted.

Generally, the overall process to dismiss someone looks like:

• Identify and investigate. You need to gather all available supporting information and ensure everything is documented.
• Refer to your company policy. Ensure that the gross misconduct you’ve identified is discussed in your company policy or employee contracts.
• Allow the employee to respond. This ensures your investigation is fair and not one-sided.
• Follow the Progressive Discipline process. This includes:
  • giving a verbal warning,
  • giving a written warning,
  • suspension (initially temporary),
  • creating a Performance Improvement Plan (PIP).
• Collect and review all your evidence. You need thorough documentation to prove you have ‘just cause’ for dismissal.
• Give their written notice. For more serious instances, instant dismissal may be required.
• Pay their final wage. After dismissal, you're still responsible for paying all their wages up until their termination date.

Next steps: Have a process in place for gross misconduct

Having a thorough definition of gross misconduct at your company—and a rigid process in place—is vital for maintaining a healthy and open workplace. Both you and your employees should be aware of what is and isn’t acceptable at work, to avoid unnecessary incidents and confusion.

BambooHR^® helps you manage all employee documents and company policies all in one place, so you’ll never have to scramble for documentation. Keep track of investigations and employee records to mitigate against breaches and miscommunication.