Understanding Major Misconduct vs. Gross Misconduct in Employment

This article attempts to clarify the difference between major and gross misconduct.

Misconduct refers to action or failing to act that is considered to be incompatible with the expressed or implied conditions of service. Misconduct can be minor, major or gross in nature.

Major misconduct is behaviour that fundamentally undermines the confidence and trust crucial in the employment relationship. It may or may not be premeditated but, in a big way it significantly reduces the employer's ability to trust or rely on the employee's integrity and commitment. A series of seemingly minor misconduct is turned into major misconduct when the minor misconduct is repeated despite clear warnings. In such cases, it is actually the disregard for these warnings that is the major misconduct which causes the breach of trust.

Gross misconduct, on the other hand, is a very severe form of major misconduct. It is usually characterized by being committed deliberately and wilfully. This is where the culprit acted consciously knowing it is wrong to do so. It is an intentional violation of workplace rules or expectations, and demonstrates a fundamental disregard for the employer's interests or the well-being of the workplace or even to spite the authority of the employer or denigrate the place of work. A major misconduct which results in heavy losses, great damage or high risks to persons or property can also be categorized as being gross.

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The key differentiator between major and gross misconduct lies in the element of wilfulness or the size of damage, loss, disruption or risk caused by the behavior or omission.

Elaborating on Major and Gross Misconduct

(a) The Distinction:

Major Misconduct: This type of misconduct strikes at the core of the employment relationship by eroding trust and confidence. It can arise from a single serious act or the repeated occurrence of minor misconduct despite warnings. The lack of regard for these warnings transforms the pattern of minor issues into a significant breach.

Gross Misconduct: This is a more severe category of major misconduct. What sets it apart is that it is deliberate and wilful, or it is committed without regard for the seriousness of harm it may cause or has caused

Deliberate implies that the action was carefully considered and decided upon, rather than being impulsive or accidental, or reaction to provocation.

Wilful suggests a conscious and intentional act. It is often committed with a negative or harmful purpose, or a clear awareness of the potential negative consequences and a decision to proceed anyway.

(b) Gross Misconduct and Summary Dismissal:

Gross misconduct, because of its wilful and deliberate nature, cannot be easily excused. The employer is generally fully entitled to dismiss the employee summarily (without notice), even if the employee has a previously unblemished working record. The severity of the deliberate breach outweighs the employee's past performance. The doctrine of proportionality of punishment should not be applied in cases of proven gross misconduct because the act itself fundamentally destroys the employment relationship.

Here are some examples of gross misconduct that typically merit instant dismissal:

1. Theft or Fraud: Intentionally stealing company property, funds, or engaging in fraudulent activities.

2. Serious Misrepresentation: Deliberately falsifying qualifications, work experience, or important company documents.

3. Violence or Threats of Violence: Engaging in physical violence, making credible threats of violence against colleagues or the employer.

4. Serious Breach of Confidentiality: Wilfully disclosing sensitive or proprietary company information to unauthorized parties, causing significant harm.

5. Gross Insubordination: Deliberately and openly defying a lawful and reasonable instruction from a supervisor, demonstrating a complete lack of respect for authority, or intention to humiliate or spite the superior, or to denigrate the place of work.

6. Sexual harassment is deliberate, and the potential harm to the victim is always great and long-lasting and therefore should never be tolerated.

(c) Major Misconduct and Considerations for Dismissal:

Major misconduct may or may not automatically warrant summary dismissal. The employer may need to take into consideration various factors, including the employee's past record, the circumstances surrounding the misconduct, and the potential for rehabilitation.

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Here are examples of major misconduct where the employer might need to consider the employee's past record before deciding on dismissal:

Negligence is major misconduct. Negligence means omitting to act even though the action is necessary. Negligent actions or omission which resulted in insignificant financial loss or risk of harm may not justify a dismissal decision if the employee has an unblemished record.

Serious Breach of Company Policy: Violating a major company policy could have been unintentional, or committed under forced circumstances which could mitigate the offence.

Repeated Minor Misconduct: Consistent lateness, absenteeism, or failure to follow minor rules despite previous warnings would be major misconduct. A repeated offender can be dismissed if he continues to repeat it after the final warning has been given but sometimes it may be wiser to impose a lesser punishment first, such as demotion, suspension without pay or deprive him of bonus or annual increment.

However, it's crucial to understand that even though major misconduct might sometimes warrant consideration of past records, there are instances where it could still justify instant dismissal, particularly when the consequences are severe. For example:

Negligence that results in significant damage to property, substantial financial loss, a serious risk of harm, or endangerment to the life and safety of others could warrant immediate dismissal, even if unintentional.

In conclusion, while both major and gross misconduct represent serious breaches of workplace expectations, the element of wilfulness distinguishes gross misconduct and typically justifies summary dismissal without consideration of past records. Major misconduct requires a more nuanced assessment, taking into account the severity of the impact and potentially the employee's history. Employers must have clear disciplinary procedures and ensure fairness and consistency in applying these principles. Consulting with HR professionals and adhering to relevant employment laws are crucial when addressing any form of misconduct in the workplace.

Chan Wang Tak

Pakar Industry Negara, HR Consultant

Author of 400 Q&A on the Practice of Labour Laws in Malaysia