Misconduct

In law, misconduct is wrongful, improper, or unlawful conduct motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one's acts. Misconduct can be considered an unacceptable or improper behavior, especially for a professional person. Two categories of misconduct are sexual misconduct and official misconduct. In connection with school discipline, "misconduct" is generally understood to be student behavior that is unacceptable to school officials but does not violate criminal statutes, including absenteeism, tardiness, bullying, and inappropriate language. (Special Education Dictionary, 2003, LRP Publications) Misconduct in the workplace generally falls under two categories. Minor misconduct is seen as unacceptable but is not a criminal offense (e.g. being late, faking qualifications).[1] Gross misconduct can lead to dismissal (e.g. stealing or sexual harassment).

  • "Misconduct" includes something seen as unacceptable as well as criminal offenses e.g. deceptive manipulation.
  • "Gross misconduct"[2] can lead to immediate dismissal because it is serious enough and possibly criminal, e.g. stealing or sexual harassment.
This article is about the legal sense. For misconduct in scientific research, see scientific misconduct. For the association football sense, see fouls and misconduct (association football). For the infraction in ice hockey, see penalty (ice hockey). For the 2016 American film, see Misconduct (film).

Misconduct refers to an action, rather than neglecting to take action, or inaction which could be referred to as poor performance.

Examples of gross misconduct

The following may be classified as gross misconduct:

  • Being drunk or under the influence of any drug while on duty
  • Bribery
  • Conviction of a felony (in some jurisdictions)
  • Falsification of accounts
  • Falsifying time records
  • Financial misconduct
  • Fighting
  • Gross insubordination/disobedience/misappropriation
  • Illegal drug or alcohol use at work
  • Illicit use
  • Negligence
  • Sexual harassment in the workplace
  • Stealing
  • Subjecting people to discrimination

Organizational

Organization and management scholars have paid much attention to the causes, forms, modes of development, and consequences of misconduct within or among organizations.[3] They have studied different types of misconduct, such as white-collar crimes, insider trading, or deceptive accounting[4][5] and, more recently, considered the development of misconduct activities between different firms, such as cartels where firms reduce competition by agreeing on production or pricing. It has then been argued that the organization of misconduct across different firms present unique challenges to conceal activities or maintain collective secret.[6]

Financial

The failure to understand and manage ethical risks played a significant role in the financial crisis. The difference between bad business decisions and business misconduct can be hard to determine, and there is a thin line between the ethics of using only financial incentives to gauge performance and the use of holistic measures that include ethics, transparency and responsibility of stakeholders. From CEO's to traders and brokers, all-too-tempting lucrative financial incentives existed for performance in the financial industry.
The past widespread financial misconduct led to a call for financial reform. The Dodd-Frank Wall Street Reform and Consumer Protection Act was passed in 2010 to increase accountability and transparency in the financial industry and protect consumers from deceptive financial practices.[7] Domestic inquiry A domestic inquiry typically follows a ‘show cause’ letter, which is sent to the employee requesting an explanation for the alleged misconduct. If the response is not satisfactory, the employer will move to the more formal domestic inquiry. Domestic inquiry should be carried out as soon as possible following accusations of misconduct and all activities should be formalized and recorded in full. Legally it is important than the investigation be carried out objectively – the investigating officers, for example, should be unconnected to the incident, and the employee should be given full opportunity to state their own case and present evidence in their favor.[8] Union representatives or colleagues should be allowed to sit in during the process if the employer requests their presence, although the employee can't insist on legal representation. An employer may, on the grounds of misconduct inconsistent with the fulfillment of the express or implied conditions of his services, after due inquiry:

  1. dismiss without notice the employee
  2. downgrade the employee
  3. impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.

References
  1. "Dishonesty in Medical Research" (PDF). Medico-legalsociety.org.uk. Archived from the original (PDF) on 21 May 2013. Retrieved 1 December 2014.
  2. "Gross Misconduct". Access Solicitor. Archived from the original on February 18, 2013.
  3. Greve, Henrich R.; Palmer, Donald; Pozner, Jo‐Ellen (2010). "Organizations Gone Wild: The Causes, Processes, and Consequences of Organizational Misconduct". Academy of Management Annals. 4 (1): 53–107. doi:10.5465/19416521003654186. ISSN 1941-6520.
  4. Harris, Jared; Bromiley, Philip (2007). "Incentives to Cheat: The Influence of Executive Compensation and Firm Performance on Financial Misrepresentation". Organization Science. 18 (3): 350–367. doi:10.1287/orsc.1060.0241. ISSN 1047-7039. JSTOR 25146106.
  5. Zahra, Shaker A.; Priem, Richard L.; Rasheed, Abdul A. (2005). "The Antecedents and Consequences of Top Management Fraud". Journal of Management. 31 (6): 803–828. doi:10.1177/0149206305279598. ISSN 0149-2063.
  6. Bertrand, Olivier; Lumineau, Fabrice (2016). "Partners in Crime: The Effects of Diversity on the Longevity of Cartels". Academy of Management Journal. 59 (3): 983–1008. doi:10.5465/amj.2013.1209. ISSN 0001-4273.
  7. Ferrell, Fraedrich: Business Ethics, eleventh edition Ethical Decision Making and Case, Sexual Harassment in Workplace. February 17, 2017. p. 80
  8. "Domestic Inquiry". pesaraonline.net. Retrieved 2017-02-18.

Further reading
  • Ghaiye, B. R. (2015). Misconduct in Employment (Hardbound ed.). EBC. ISBN 9789351450252.
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