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Just been doing some research for a collegue who has a disciplinary hearing at work and would like to hear some thoughts.
Did a search on wikepedia for misconduct and found this.
"A misconduct is a legal term meaning a wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts."
For example, if an employee needed to hold a particular licence for an employment, already had a licence issued (which has to be renewed) but the employee failed to renew the licence on the specified date and continued to work without the licence would this constitute gross misconduct?
The company pays for the licence to be reissued, and it is a very simple process for which the employee had all the requirements to hold the licence. It had simply not been checked and went past the expiry date (through niavity more than anything)
Obviously a few issues here, the employee had all the requirements for issue and the company paid so there is no need to avoid the re issue process. In my eyes, that would mean it wasn't premeditated or intentional. A further issue is that the company did not have procedures in place to check validity dates and inform the employee of pending renewal.
I think, for the purposes of employment, one would look at 'Conduct' as being the way in which one behaves, or manages a task or activity, and then apply the prefix 'Mis' to indicate 'badly'. In other words an employee agrees to conduct his or herself in accordance with a set of rules or instructions, and one who does not do so, for whatever reason, could be accused of 'Misconduct'. I would not consider that the argument over premeditation would go very far. A van driver, for example might forget to conduct routine checks on his vehicle, have a collision as a result and be found guilty of misconduct due to his negligence. That is not to say that he wilfully chose not to check his vehicle, but maybe he just forgot - it is the consequence of his forgetting which matters.
Similarly, your friend is required as a part of his contract (either specifically or through an implied condition) to relicense. Whether he chose to not renew, or simply forgot to do so, the act could have had consequences for the company - either directly or through damage to reputation perhaps.
Has the disciplinary action been handled correctly? There may be other areas on which to argue, but I really think that to split hairs would label your friend as a bit of a smart ar*e in this instance. His best bet may be to admit to his naievity and to argue for a warning on the promise to not forget in future.
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checks of the licensing documentation had been made by two seperate senior managers within the company on two seperate occasions during routine competancy checks, and they hadn't noticed the expiry either. This was over a 6 month period. Also it is industry wide practice to have checking procedures in place, and this company doesn't have it.
I read on a different thred that Gross Misconduct has to be intentional, which i don't think in this case it was. He takes full responsibilty for the error, but he (and i) think there should be certain safety nets in place. He's hoping for written warning, but i'm not sure.
It's just a licence to operate machinery and yes you need one to work. The company does periodic checks for competancy in accordance with established procedures and the competancy check was passed on two occasions. The licence had expired though, however as i said he had the requirements to hold the licence and the company pays for it. It was nothing more than a genuine mistake.
It's not that he is trying to get the blame on to anyone else and knows he has to accept responsibilty, but doesn't know how to play it.
Gross Misconduct?
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