UNDERSTANDING THE MISCONDUCT IN DOMESTIC ENQUIRY

UNDERSTANDING THE MISCONDUCT IN DOMESTIC ENQUIRY

Prof.G.P.Naik, Ph.D

Disciplinary action can be conducted against an employee only if he is alleged to have committed misconduct. So what is misconduct? Misconduct is the action (commission) or inaction (omission) of an employee defined by the employer as unacceptable, prohibited or as wrong. An example of action becoming misconduct is that, an employee has slapped another employee or stolen the money belonging to the company. An example of inaction becoming misconduct is that an employee has not locked the office after working hours resulting in theft or has not cleaned the machine which has resulted in stoppage of production. Thus misconduct is the action or inaction of an employee which is against the interest of his employer/ organization.Misconducts are organization specific, the list of which can be found in certified standing orders in respect of workers and in the company service rules for officers and managers. 

Misconduct is wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. The other names for misconduct can be wrong doing, delinquency, lawlessness, crime, evil, unprofessional behaviour, unethical behaviour, malpractice, maladministration, dereliction of duty, negligence, sin, breach of trust, impropriety, misdeeds, misdemeanours, mischief, rudeness, immorality, disorderly and abuse of power.

Misconduct is generally the workplace behaviour of employee but in certain cases the behaviours outside the workplace may also liable to be construed as misconduct and punished by the employer. For example the employee was caught at home by the police for consuming narcotic drugs which resulted in his conviction by the court of law. The best yardstick to determine if the employee behaviour outside the workplace can be considered as misconduct is to see if he has committed any offence involving moral turpitude. Many of us may have been caught by the police for traffic violations on the road and punished by imposing monetary penalty, which is definitely an offence but cannot be called as  an offence involving moral turpitude.

Moral turpitude is a phrase used in criminal law to describe the conduct that is considered contrary to community standards of justice, honesty, or good morals. Crimes involving moral turpitude have an inherent quality of baseness, vileness, or depravity with respect to a person's duty to another or to society in general. Moral turpitude refers generally to conduct that shocks the public conscience. Turpitude means a corrupt or depraved or degenerate act or practice. The precise definition of a crime that involves moral turpitude isn't always been clear, but the following crimes are always considered crimes of moral turpitude. Murder, rape, aggravated assaults, violence, prostitution, fraud, blackmail, malicious destruction of property, arson, smuggling, harbouring a fugitive, bribery or perjury. Conviction of crimes of moral turpitude may also disqualify someone from an employment opportunity.

REASONS TO COMMIT THE MISCONDUCT

All the candidates who appear for employment selection and interview tell that that they want to work with honesty and efficiency if employed. Hence test and interview cannot determine the motive of candidates. Background or antecedent verification will reveal the past behaviour and not future behaviour.  Therefore few employees in any organization will end up committing misconduct, due to any of the following reasons.

Motive: Some employees have the inherent intent, reason, drive or purpose to commit misconduct. They wait for an appropriate opportunity and commit the misconduct. For example the cashier has stolen the money when the manager was on leave. 

Influence: Some employees are influenced by the behaviour of other employees to commit the misconduct, particularly if the organization has a lax system in dealing with employee misconduct. For example, the company does not take action against handful of habitual late comers to work in the beginning, which encouraged other employees also to come late.  

Compulsive habit: Some employees may have developed compulsive habits which forces them to commit the misconduct. For example the employee has become alcoholic, hence he absents from work till all his salary earnings spent for alcohol consumption.  

Personal reasons: Some employees commit misconduct due to personal reasons not related to the workplace. For example an employee absents at least ten days every month, because he is the only one who can take his mother to hospital for dialysis.  

Lack of knowledge and skills: Some employees commit misconduct due to lack of knowledge and skills. For example an employee smokes at workplace because he is not aware of its prohibition or an employee produces defective goods because he is not skilled at producing quality products.

CONSEQUENCES OF MISCONDUCT

An employee alleged to have committed any misconduct has prima facie done injustice to others or to the organization. Therefore justice can be done by punishing the accused employee. But allegation of misconduct cannot be taken on its face value to punish the accused person, unless and until the allegations are proved to be true in domestic enquiry so as to hold an accused employee as guilty employee. If a guilty employee is not punished, he is most likely to repeat the misconduct. Not punishing the guilty employee will encourage other employees to commit the misconduct, resulting in a culture of indiscipline across the organization. Hence employees found guilty of misconduct deserve to be punished appropriately based on facts and circumstances of the case, past record of the employee and gravity of the misconduct. 

CLASSIFICATION OF MISCONDUCT

Misconduct can be classified as major and minor misconduct on the basis of (1) intention of the accused employee and; (2) severity of adverse consequences arising out of the misconduct. While there is no formal definition of what constitutes gross misconduct in the workplace, some accepted descriptions include wilful disregard for the safety of others; deliberate acts of violence or hostility; attempts to financially defraud the company; significant levels of insubordination; and dishonesty through falsification of documents or other forms of misrepresentation. Acts such as poor performance, minor errors in judgment or negligence are not typically considered gross misconduct, but rather as minor misconduct or poor performance.

The differentiation between wilful and negligent behaviour is difficult to determine and often comes under scrutiny. For example, a banker who inadvertently transfers large sums of money to an unintended recipient through an accounting error is seen as negligent, whereas a banker who knowingly funnels funds to a third party and personally benefits from the transaction is considered to be an act of gross misconduct.

Generally, most criminal offenses that happen at the workplace are defined as gross misconduct. This includes murder, sexual assault and embezzlement. Criminal gross misconduct is typically identified and proved in the court of law by filing a criminal case.

CLASSIFICATION BASED ON INTENT AND GRAVITY

Deliberate acts: Knowingly well what he/she is doing, the employee does certain things or avoids doing certain things both of which are considered as misconduct. For example the employee smokes a cigarette at the prohibited area in the factory. Another example, the cashier fails to deposit the cash to the bank resulting in loss of interest earning on the deposit. Here the gravity of misconduct may be low, but intentions are quite bad.  

Unintended acts: Unintended acts are omissions and commissions done in good faith without knowing that they amount to misconduct. For example the manager selects a driver after conducting aptitude test and interview and appoints him immediately due to paucity of drivers and conducts the antecedent verification after one month. By then the driver has vanished by driving away the company van carrying cash worth Rs.20 crores. Another example, when one worker was throwing metal objects from first floor to ground floor to clean the floor, it falls on a customer who walks-in without notice, resulting in his death.  Here the gravity of misconduct may be high but the acts and omissions are not premeditated. 

Unintended minor misconduct: Here the employee commits a small mistake unintentionally. For example the employee forgets to deposit the cheque to the bank immediately and does so after three days due to work pressure of financial year closing of accounts. Even though the money was received, the company lost interest on the money for the delayed three days. Such cases should be closed just by issuing the caution letter, instead of pursuing the matter further. 

Unintended major misconduct: Here the employee has committed a serious misconduct, unintentionally. It means there was no ulterior motive involved in the act of misconduct but the consequences are serious in nature. For example the bus driver of the company has caused an accident on the road due to his wrong judgement, which has resulted in the death of twenty workers of the company and the company is required to pay compensation and legal charges running into millions of rupees. Such cases should be pursued by issuing charge sheet, but the punishment should be moderate say, termination from service rather than dismissal from service.    

Intended minor misconduct: Here the employee has committed a minor misconduct, intentionally. It means there was ulterior motive involved in the act of misconduct but the consequences are not serious in nature. It is a deliberate act. For example the employee has smoked a cigarette at the factory premises, knowingly well that it is prohibited, but it has not resulted in any accident or loss to the company. Such cases should be pursued by issuing charge sheet, but the punishment should be proportionate to the gravity of misconduct, say suspension from duty without pay for a period of one month or stoppage of annual increment for a period of one year.

Intended major misconduct: Here the employee has committed a major misconduct, intentionally. It means there was ulterior motive involved in the act of misconduct and the consequences are serious in nature. It is a deliberate act. For example the employee has stolen Rs.1000 from the factory premises or slapped the supervisor. Any employee of honesty and maturity will never commit such misconduct and every employee is expected to conduct himself at workplace with honesty and maturity. Such cases should be pursued by issuing charge sheet, and the punishment should be proportionately high in accordance with the gravity of misconduct, say dismissal from service.

CLASSIFICATION BASED ON MODUS OPERANDI

Simple misconduct: Simple misconduct may be minor or major misconduct but it is easy to investigate and understand. Generally such misconducts are committed in the presence of others (eye witnesses) or there is clear evidence available to prove the allegations easily. For example the worker has slapped the supervisor in the presence of other employees or CCTV footage is available about the money stolen by the cashier in the factory premises. Generally the person, place, date, time and circumstances of committing the misconduct is clearly known. 

Complex misconduct: Complex misconduct may be minor or major misconduct but it is not easy to investigate and understand. Generally such misconducts are committed in the absence of others (eye witnesses) or there is no clear evidence available to prove the allegations easily. For example the worker has slapped the supervisor when a group of employees quarrelled with the supervisor and no one is willing to be a witness. In another example an employee is suspected to have damaged the machinery but neither there is CCTV footage nor any one has seen it. Generally the person, place, date, time or circumstances of complex misconduct are unclear.

CLASSIFICATION BASED ON NATURE OF CASE

Domestic enquiry cases can be broadly classified into three types based on nature of the case, namely (a) blue collar case; (b) white collar case; and (c) criminal case; which are briefly explained below.

Blue collar case: Blue collar case is the one in which the employee is accused of manhandling, abusing or harassing another employee or customer or any other person connected with the organization like supplier or consultant. For example a worker Mr. Ashok is accused of using filthy language against his supervisor Mr.Vikram. 

White collar case: White collar case is the one in which the employee is accused of falsification, cheating, stealing, misappropriating in relation to his/ her work or the organization. For example a worker by name Mr.Sudeep is accused of securing employment by submitting bogus Diploma certificate. Another worker Mr. Ganesh is accused of stealing the cash from the office. Both these examples are criminal in nature, but generally the management prefers to conduct domestic enquiry rather than filing a police complaint.

Criminal case: Criminal case is the one in which the employee is accused of committing an offence which if proved would amount to crime under law. In such cases the victimised person or the management may volunteer to file police case against the accused employee. Alternatively the police department on its own motion may register a case and produce the employee before the court of law either seeking police custody or judicial custody. For example a worker Mr. Binay has murdered another worker Mr. Chinu.

CLASSIFICATION BASED ON FOCUS

Person related: Person related misconduct are caused by problems inherent in the individual employee. For example, committing mistakes by doing work not allotted to him or wrongly doing the work which he is not trained to do, absenteeism, drug addition, sleeping at work place etc,.

People related: People related misconduct are committed in relation to other employees, customers or suppliers. For example, quarrelling, bullying, fighting, using abusive language, not following the lawful order of the superior, ill treating the subordinates, rape, murder, causing injury etc,.

Work related: Work related misconduct are committed in relation to the assigned responsibilities. For example, deliberately not doing the allotted work, committing frequent or grave errors at work, neglecting the work, creating health or safety hazard by carrying out unauthorised work in which he is not trained thereby causing health or safety hazard etc, 

Integrity related: Integrity related misconduct are related to lack of authenticity or transparency in the conduct of the employee. For example telling lies, hiding the truth, cheating, stealing, not keeping up the promises made, submitting bogus certificates to secure employment, promotion, leave or other benefits and misrepresentation of facts,.   

Please remember, there has to be allegations of misconduct to hold an enquiry by issuing charge sheet, and the allegations have got to be proved in the enquiry by producing valid evidence, to punish the employee. 

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Prof.G.P.Naik is Principal Consultant at TalentAvenues. Phone 9243470110. Email [email protected]