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Termination due to employee misconduct

Termination due to misconduct is a serious disciplinary action that should be carefully considered. Employers must conduct a formal inquiry before taking any disciplinary action.

What is misconduct

Misconduct is the failure to fulfil the conditions of employment in the contract of service. Examples include theft, dishonesty, disorderly or immoral conduct at work and insubordination.

If an employee has been accused of committing an act of misconduct, the employer should inform the employee and conduct an inquiry before deciding whether to dismiss an employee or to take other forms of disciplinary action.

Conducting an inquiry

There is no fixed procedure for an inquiry, but as a general guide:

  • The employee should be told of their alleged misconduct.
  • The employee should have the opportunity to present their case.
  • The person hearing the inquiry should not be in a position which may suggest bias.

In accordance with the Employment Act, the employer may suspend the employee from work during an inquiry:

  • You must not suspend your employee for more than 1 week without the Commissioner for Labour’s approval.
  • You must pay your employee at least half their salary during suspension.

Extend suspension period

If an employer needs more than 1 week to complete the inquiry, the employer must seek the Commissioner for Labour’s approval at least 3 working days before the end of the 1-week suspension.

Employers must explain the need for an extended suspension period. The explanation should include:

  • Description of the alleged misconduct.
  • Reasons for the extended inquiry.
  • Salary amount payable to the employee during suspension.
  • Estimated end-date of the inquiry

What to do after inquiry

No misconduct

If no misconduct is found, the employer must restore the full amount of any salary that was withheld during the suspension period.

Misconduct found

If the inquiry establishes a case of misconduct, the employer can do one of the following:

  • Instantly downgrade the employee.
  • Instantly suspend the employee from work without pay, for not more than 1 week.
  • Terminate employment without notice, and no salary in lieu of notice will be paid.