Management of misconduct

Intro to dealing with misconduct

In law, there are often gray areas, especially when it comes to professional misconduct. Legal rules are usually based on a general rule, but there are often exceptions that leave room for interpretation. One such area is when misconduct becomes a substantive reason for dismissal. Here there is a lot of room for debate about what is right or wrong. In this topic, which goes to the heart of employment law, I will explain how misconduct is handled legally. In practice, however, it is not always the law that resolves a situation, but a mix of several factors, such as the employer's management and the dynamics of the workplace.

Examples of typical misconduct under employment law

• Not following procedures, policies etc
• Unauthorized absence
• Late arrivals
• Misconduct in the course of work
• Refusal to work and refusal to participate in certain investigation or work activities
• Harassment
• Sexual harassment
• Loyalty problem
• Untruthfulness at interview and conclusion of employment
• Competing business
• Criticism of the employer
• Turning to authorities /Whistleblowing not considered to be within the scope of good practice
• Crime in various forms such as assault, threats, harassment, embezzlement both during working hours and outside if it affects employment

Checklist for handling

1. Is it mismanagement?
   To determine whether there is misconduct, it must be assessed whether the employee's action violates employment contracts, policies, job descriptions or direct orders. These can be written or verbal violations.
2. Securing evidence, documenting and investigating
   Gather and document all relevant information about what happened. Talk to colleagues, customers or partners who witnessed the misconduct. Secure physical evidence, such as data logs or access control systems, to prove what happened.
3. Confront the employee
   Have a direct conversation with the employee and ask about the reasons behind the behavior. If no reasonable explanation is given, clarify the expectations going forward. Document the meeting by follow-up email or signature on meeting notes.
4. Remind/warn
   If the misconduct is repeated, issue a written reminder (warning) stating that the employee is in breach of the employment contract and that the employment may be terminated if the behavior does not change. Depending on the severity of the misconduct and the time between incidents, several reminders may be required before dismissal is considered. It is good practice to issue a warning before dismissal, if the misconduct is not so serious that it directly justifies dismissal or removal. A warning gives the employee the opportunity to correct his or her behavior and can be an important part of demonstrating that the employer has done what it can to avoid dismissal. At the same time, any future dismissal will not come as a surprise to the employee if the behavior continues.
5. Take legal advice
   In case of serious misconduct, contact us to determine whether there are substantive grounds for dismissal on personal grounds, or whether there are grounds for dismissal. In particularly serious cases, some or all of the steps in the checklist may be skipped. However, it should be left to legal counsel to consider.

Remember that

• Negotiations with the trade union
  As in all labor law, it is important to take into account any collective agreements that may regulate the reminder. If the employee is a trade union member, it may be relevant to conduct negotiations under the MBL before a reminder is drawn up. This gives the trade union the opportunity to express its views and can help to avoid conflicts.
• The time factor in mismanagement
  The employer should act quickly when misconduct is discovered. The longer it takes to act, the more difficult it will be to claim that the misconduct constitutes grounds for dismissal or dismissal. It is also important to document all measures and actions, as this can strengthen the employer's position in any legal proceedings. As a general rule, a dismissal may not be based on circumstances known to the employer for longer than two months from the date of notification.