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Gross Misconduct in the Workplace

Gross misconduct refers to an illegal action by an employee that is so inappropriate that it leads to termination without warning or compensation. An employer has grounds to fire under gross misconduct if the employee’s wrongdoing was intentional and cannot be misinterpreted as a mistake or negligence.  

Gross misconduct has many different interpretations. The term is used to describe acts of financial fraud or embezzlement, theft, sexual harassment or actions that threaten the safety of the employees or work environment. 

Read below to find out more about gross negligence in the workplace.

The difference between gross misconduct and misconduct

There is a clear line between misconduct and gross misconduct.

Misconduct refers to an employee’s actions that can be explained as a mistake or negligence. If an employee is sighted for misconduct, they may be disciplined or reprimanded by the employer before being terminated.

Gross misconduct is where an employee’s actions are so unspeakable that it warrants termination. If an employee is fired for acts of gross misconduct, the wrongful act committed was of sound intent. 

The line between negligence and gross misconduct

There is a behavioral difference between gross misconduct and negligence. Negligence is a mistaken act on an employee’s part that resulted in a compromise of workplace safety or policies. Negligent acts are handled with other forms of punishment before the employee is fired.

Determining gross misconduct categories of severity

There is no exact definition of gross misconduct. However, the most common forms are a continued disregard for safety, violence, misuse of company funds, disregard for company policies, and falsifying documents, amongst other acts.

Behavioral gross misconduct is an act in which an employee verbally or physically acted in a discriminatory manner toward a co-worker or someone else within their place of employment.

The United States Equal Opportunity Commission (US -EOC) considers acts against someone because of their age, sex, race or religion to be grounds for termination for reasons of behavioral misconduct.

Criminal gross conduct in the workplace can be any unlawful act that happens in the workplace. These offenses include theft, sexual assault, physical violence or murder, and larceny.

Employer requirements, before terminating for gross misconduct

Employers have the right to fire an employee for any reason they desire. However, when the reason is because of gross misconduct the employer is must ensure the act of the employee is defined as gross misconduct. Employers must have proof in case the employee challenges the decision.

An employer is not required to give a warning or otherwise reprimand an employee that is fired due to gross negligence. However, the employer must be able to prove that grounds for dismissal was without a doubt, gross misconduct.

Below is a few steps an employer should take, before firing an employee for gross misconduct.

Limit the liability. If the employee in question poses a potential to cause harm to themselves or coworkers, it may be necessary to ask them to leave the workplace. This could be possible if the employee seems to be intoxicated or under the influence of an illegal substance.

Investigate. The matter may warrant an investigation unless the employee smelled of alcohol or they were caught with alcohol or illegal substances. An employer must treat an investigation as if the employee is innocent until proven guilty. In some cases, the employee may be entitled to full wages until the investigation is complete.

During the investigation, the employer should get statements from the employee in question and any coworkers that may bear witness to the incident.

Getting ready for a disciplinary hearing. Once all statements have been recorded and it is decided a disciplinary meeting is required. The employer should inform the employee of the charges and give verbal notice of the time and date of the hearing. The employee should be informed that they too, can bring witnesses to their defense.

Prepare a written account of the allegations. The employer should draft an account of the accusations the employee is faced with, along with a detailed reason it is believed the employee’s intended to commit gross misconduct. The employee should be presented with a copy of these allegations when informed of the hearing. 

Selecting a negotiator for the hearing. The conference negotiator should be an impartial person who is not a witness to either side.

Hearing records. A written account of the hearing should be documented, in case it needs to be reviewed.

The right to fair rebuttal. In the interview, the employee and his or her witnesses should be given adequate time to speak in their defense.

Adjourn the hearing if the employee in question has substantial evidence that may warrant further investigation.

The final decision. The hearing should also be adjourned while the hearing negotiator is making their decision. The negotiator should take into consideration the employee’s attendance, work, and behavioral record before the incident.

The outcome. Once a final decision is made, the employee must be informed immediately.

Potential consequences of gross misconduct termination

Being terminated for gross misconduct can result in serious consequences that can follow an employee for the rest of their life.

Denial of medical coverage. Once an employee is terminated for gross misconduct, the employer has the option to refuse to continue their health coverage.

Re-hirable. After termination for gross negligence, an employee is not eligible for re-hire within the same company or sister companies.  

Criminal charges. Depending on the reason an employee was found guilty of gross misconduct, he or she may face criminal charges. Being found guilty of gross misconduct in a court of law could prevent the employee from being hired anywhere within their chosen line of work.

Employee rights after gross misconduct termination

The employee can appeal the decision of the first disciplinary hearing. This appeal can be submitted directly to the hearing negotiator. The employee can also appeal the decision to revoke their health benefits. But, this appeal and decision must be presented to the unemployment department in the state he or she resides.

Employee rights to Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)

At the time of termination, the employer must inform the employee that they are no longer entitled to Cobra benefits. If the company neglected to give written notice, the employee might still draw the benefits. In addition to receiving their benefits, the employee may be able to sue the former employer for expenses incurred in relation the gross misconduct termination.

Gross misconduct can follow an employee through every job they apply for and for the rest of his or her life. It is vital for each person to maintain civility in the workplace. Contact your supervisor or upper management if you feel you are being challenged or faced with a situation that could lead to gross misconduct. There are ways or programs available to employees to prevent these situations. If you are faced with charges or an employer who needs more information on the matter, consult with a legal Expert. 

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