Gross Misconduct

What Is Gross Misconduct?

Gross misconduct is any unethical and unp111rofessional behavior an employee engages in. Not only can gross misconduct harm one’s relationship with their employer, but it can warrant instant dismissal from their job—even if the behavior is their first offense.  

What's Gross Misconduct at Work?

Though individual businesses may vary somewhat in defining the term, gross misconduct in the workplace generally involves serious actions that threaten the safety, health, and reputation of their colleagues and the organization. 

Employers should discuss what constitutes gross misconduct and its repercussions in their employee handbook or employment contract. This protects companies in the event they do let go of an employee. Its inclusion in the handbook or contract indicates that both the employer and employee have agreed to the gross misconduct terms and that the organization has the right to dismiss a worker if they breach those terms. 

Outlining gross misconduct in writing also helps employees understand what is expected of them and what would cause immediate termination of their employment. 

What Are Examples of Gross Misconduct?

Gross misconduct involves several actions that can include but are not limited to: 

• Illegal drug or alcohol use at work

• Theft 

• Vandalization of company property 

• Sexual harassment/assault

• Fighting and/or making violent threats in the office

• Repeated tardiness or absences

• Fraud

What Is the Difference Between Misconduct and Gross Misconduct?

While gross misconduct is serious enough to fire an employee on their first offense, misconduct, though still consequential, does not result in such severe consequences. While employees may well face consequences for misconduct, they are likely to continue to be employed, especially after the first offense. 

Misconduct can include: 

• Being tardy to work 

• Submitting lackluster or incomplete work

• Being rude toward colleagues and clients

• Using company equipment for personal use without permission from management

Misconduct typically involves a warning and a verbal or written reprimand from the employer. Repeated cases of these behaviors can be considered gross misconduct and result in termination. 

As the lines between misconduct and gross misconduct can often get blurry, it’s best to discuss them with your HR team and clearly differentiate them in your employee handbook. Having a well-defined protocol can also be useful for categorizing certain behaviors in case an employee gets involved in a unique circumstance that is not explicitly listed in the handbook. 

Please note though, if an employee’s behavior is not listed in your policy, you may not be able to prove their behavior as gross misconduct and dispute their unemployment benefits. 

How Do You Prove Gross Misconduct?

If management has not directly witnessed the employee committing gross misconduct, they may use witness statements to prove the individual has carried out such behavior and use the statements as a reason for the employee’s dismissal. 

Whatever the case, the company should launch a full investigation. This involves: 

• Reading your employee handbook or employment contract to see whether your worker’s behavior is considered misconduct or gross misconduct.

• Speaking with witnesses to learn more details about what happened.

• Looking back at employee documentation if available. Have there been events/behaviors in the past that may have contributed to the possible gross misconduct? Or maybe this has happened before, which might increase the chance that the employee’s behavior is classified as gross misconduct.

• Providing the employee with the opportunity to explain their side of the story in a disciplinary hearing.

Gross Misconduct Termination

Based on the investigation, you and your team can decide whether to fire the employee for gross misconduct. Employers can choose to dismiss employees at any time with a written letter of termination. This should be a brief statement that explains why they are being terminated and any entitlements or payments owed to them. 

What Does Gross Misconduct Mean for Unemployment?

Employers have to pay payroll taxes; these taxes include contributions to unemployment insurance. When an employee is fired or laid off, they may apply for unemployment and COBRA (Consolidated Omnibus Budget Reconciliation Act) benefits. If this claim is approved, the business may receive a tax increase to cover these benefits. 

Organizations have the right to appeal the unemployment claim if they feel the employee does not have a legal right to the benefits. According to the U.S. Department of Labor (DOL), an employee is only entitled to unemployment benefits if they are not responsible for losing their job. 

DOL’s COBRA employer policy states that COBRA cannot be offered to individuals who were let go because of gross misconduct. Employers must give their terminated employees notice stating they do not qualify for COBRA due to gross misconduct.