Misconduct and Criminal Offence

Mar 30, 2016

How does an employer deal with misconduct that also happens to be a criminal offence?
Employee misconduct can be a complex issue, especially if the act of misconduct is also a crime. It is unique and employers need to handle it correctly in order not to break workplace rules and criminal law.
What is the correct way to deal with misconduct that is also a criminal offence?
If an employee’s act of misconduct is a crime, the employer can call the police and lay a criminal charge against the employee. After this, the employer can take disciplinary action against the employee. The employer does not have to wait for the criminal case before taking disciplinary action against the employee. Why?
The two issues (disciplinary action and criminal case) are completely separate even though they stem from the same misconduct. The disciplinary enquiry only has to prove that the employee is guilty on a balance of probabilities. This is a much easier test than in a criminal case.
In a criminal court, the State prosecutes an individual for a criminal offence and has to prove beyond a reasonable doubt that the person is guilty – which is much harder to prove. Essentially, the outcome of the criminal procedure does not have an effect on the result of the disciplinary enquiry and vice versa.
But what if the employee is in jail?
If the employee is in jail and cannot make bail while awaiting trial, he should not be dismissed in his absence. Employers should rather wait until the employee can attend the disciplinary enquiry. The employee’s absence must be treated as unpaid leave during this period, i.e. ‘no work, no pay’.
Employers should not simply agree to wait for the criminal trial before starting with the disciplinary process. Trials can take a very long time and delay the internal process.
Knowing how to deal with misconduct that also happens to be a criminal offence will help ensure employers discipline their employees correctly.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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