Q: A married couple that work for me have lots of paid time off for looking after their children. I recently gave them more paid time off because the wife was due to have an operation. I recently found out the op was cancelled but they never came to work and were in fact at a party that night. Is this grounds for dismissal?
Jul 16 2006
Answered by: Peter Done Ask a question
If you are providing your employees with paid time off you would expect them to behave in an honest and responsible manner whether or not that paid leave was a statutory entitlement or just because you are a good boss. However, when the employee abuses the situation the relationship can turn sour and you have to remind yourself that you must remain objective and look at this behaviour on its own merits because it doesn’t have anything to do with previous paid leave at this stage. You are asking whether this type of misconduct is grounds for dismissal. Well, misconduct itself is one of the potentially fair reasons for terminating an employee’s employment, and gross misconduct can result in immediate termination of employment without previous warnings, but the decision must be fair in the circumstances. I advise you to take a step back and ask yourself how serious you think this behaviour is on a scale of one to ten with ten being the most serious misconduct such as fighting on company premises or embezzlement. The other end of the scale would be really minor acts of misconduct such as being a few minutes late for work on the odd occasion. Midway serious, you may expect to find examples of being rude to a senior manager; and it will be even more serious if insubordination was carried out in front of a customer because it could have adverse affects on the business as a whole and for that reason, some observers may say that kind of behaviour is more like gross misconduct. The point is that you can only assess the conduct as ‘minor, serious or gross’ if you look at the surrounding facts. Here, the employees in question may have lied to gain a monetary advantage from you and this would normally be regarded as unacceptable behaviour as it can adversely affect the business in terms of profitability and staff morale (as other staff have to cover during a colleague’s absence). From the facts you have given this would seem on the face of it to be a gross misconduct issue but we only have to add a few mitigating factors to describe a totally different scene. For example, if the employee was suffering with a life threatening condition and due to her specialist being involved in a car accident only half an hour before her operation, she was sent home, the time being 3.00pm in the afternoon when she was finally discharged from hospital. Now, quite distraught by events her husband, who has been at her side throughout her ordeal, persuaded her to attend her parents’ golden wedding anniversary celebrations in an attempt to lighten the burden. (Their loving daughter having kept her parents in the dark about her illness in an attempt to spare them the trauma of recent events!) Oh dear, if you were to fire these two employees I fear that you could come unstuck in a tribunal. But on the other hand, two thoughtless, party animals who screw their boss for every freebie they can get, well that’s a different matter entirely and if you make sure that you follow the disciplinary procedure to the letter, you may be able to justify a dismissal for gross misconduct but in any event, I advise you to take the advice of a solicitor before dismissing these two. Just a note, employers often misread the phrase ‘dismissal without notice’ when it comes to gross misconduct. It means that after you have applied the proper disciplinary procedure and if a dismissal is justified on the evidence, then you can dismiss the employee with immediate effect, without paying them for their notice period. They would still be entitled to appeal of course. It doesn’t mean that you can sack them on the spot without the formal procedure!
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