Dismissals - Termination for gross misconduct

It is extremely rare for an employee to do something that would result in termination of their employment without any prior warning or indication, or that such a breach could lead to a fair instant termination. The act in question must have been established as gross misconduct in order to terminate the employee's contract without prior warning.

A gross misconduct offence has to go to the root of the contract and shatter the relationship between employer and employee. Therefore, no notice is required in gross misconduct circumstances necessitating a summary dismissal because an employee could not work their notice period for an employer if it was impossible for their employment contract to continue.

There are a several things to consider when claiming that an employee has committed an act of gross misconduct.

First, assess whether or not the rule that has been broken is in itself sufficiently serious to justify a gross misconduct dismissal; it has to be something fundamental to your operation in terms of job responsibilities, or the rule breach must invalidate mutual trust, confidence and respect.

Second, it must be clear that such an action would result in gross misconduct or instant dismissal. Matters such as theft and assault are obvious but others should be made clear in the disciplinary rules and displayed on notice boards.

Highlighting an offence in the rules and disciplinary procedure as gross misconduct does not mean that it is necessarily so: it has to be an action that shatters a contract at its root. Employees must know and understand that, by the action appearing in a disciplinary procedure or notice, a breach of the stated rule could result in summary termination for gross misconduct.

Third, even if there is a prima facie breach of a gross misconduct rule, as part of the investigative process you will need to establish whether or not the offence is admitted or denied. If it is denied then you will need to go through an investigative process as established by the Burchell principles.

Fourth, if the misconduct is admitted, consideration must be taken to establish any mitigating circumstances, or if the circumstances themselves point to mitigation. Even though there is a potential breach of the gross misconduct rules, you must not necessarily dismiss for an offence until the mitigating circumstances have been taken into account. An accident should not lead to a gross misconduct situation.

Fifth, you must not go ahead with misconduct dismissal unless you are certain that there are not going to be any arguments of consistency; this would detract from it being a fair dismissal in the circumstances.

Finally, you have to make sure that the employee was not allowed to continue working once the potential misconduct offence was discovered; the employee should be suspended on full pay as an investigation is undertaken. It would be inappropriate to say that the employee has to be dismissed for gross misconduct without notice; the contract is unworkable between the employer and employee if there is a period of time that they were allowed to continue working while you know of an offence.

Peter Done, managing director, Peninsula.