There are so many times I should have been fired from the various jobs I have had over the years. Like the time I lost a cheque for $300,000,000 when I worked for a bank (turns out I left it on a photocopier), or when I kept turning up to a law firm in gym gear and stayed dressed that way for the entire day. Truthfully, I should have been fired from all my jobs for being completely hopeless at them.
I therefore dedicate this section of this book to my former employers. Hello, my old bosses. You could have, and should have, fired me when you had the chance. Thank you for putting up with me for all those years.
Let us start with the big stuff; the actions that can get you sacked on the spot. No ‘three warnings’ or being put on probation. Some things you might do at work are considered so wrong, so horrible, or so offensive that your boss has the legal right (and moral duty) to instantly fire you and have you respectfully but firmly removed from the workplace. These sorts of behaviours are referred to in employment law as ‘serious misconduct.’
Now, the question is, what exactly amounts to ‘serious misconduct’? The law says, ignoring all the legalistic bullshit, that it cannot give a single definition of what amounts to serious misconduct, as each workplace is different. It depends on the facts of the matter.
Once again, let’s use an example from my life to figure out what this means. My friend – yes, I still have a few left – decided it would be a great idea to streak through his office during an end of year Christmas drinks celebration. His employer instantly fired my friend. His firing was legally justified because my friend’s actions were, pretty inarguably, serious misconduct in the workplace.
The employer’s position was that streaking at work was offensive and disrespectful to my friend’s work colleagues, and if details of it became public it would likely have a negative impact on the reputation of the business. My friend did not challenge his dismissal, but even if he did I don’t think he would have had much luck. What he did was, at his particular workplace, seriously misconduct-y.
He runs his own delivery business now, and as far as I know keeps his nudie runs to the privacy of his own home and to family Christmas lunches. The only problem is that he does them at my family Christmas lunches, but my mum always seems surprisingly cool about it.
However, if his boss had a history of allowing, or encouraging, streaking in the workplace, then it would have been much more difficult for the boss to argue that my friend’s streaking was an act of ‘serious misconduct.’ Unless there was something so special about the way my friend streaked (or is it strooked?) that it went well beyond the usual accepted level of office streaking, his employer would have been on very shaky legal grounds if the employer decided to instantly dismiss my friend, particularly if no other office streaker had been instantly dismissed in the past. The law says that when an employer is trying to work out whether a certain action by an employee is one of ‘serious misconduct’ there has to be a fair and unbiased assessment of the employee’s workplace behaviour.
The power to fire an employee for serious misconduct has its limits, though. The employer must give the employee what is quaintly called ‘natural justice.’ What this really means is that the employer must tell the employee why the employer intends to fire the employee and give the employee the chance to argue the case for why they should not be fired.
You can probably imagine how well those sorts of discussions go.
Employer: ‘You did a nudie run. Your fellow workers were horrified, and our customers were not impressed. Well, one customer was impressed and left their number for you, but the rest were outraged. We intend to fire you right here and now for serious misconduct. Do you have anything to say for yourself?’
Employee: ‘Sorry, I was a little drunk.’
Employer: ‘Not good enough. Find your pants, pack your stuff, and get out of here!’
Many of my intelligent and kind readers might well ask at this point: ‘Does my boss have a legal obligation to give me three warnings before I can be fired for less serious workplace (mis)behaviour?’
Well, yes, he or she does have this obligation. Sort of.
The law allows an employer to give formal warnings to an employee, or to require an employee to meet agreed performance benchmarks in order to keep their job. However, it is important to know that there is no legal right to three warnings before you can be fired. The law instead says that an employer must give an employee notice of any underperformance issues and the chance to fix those issues. This can take the form of a series of warnings or notices to the employee or putting in place a plan to help improve the employee’s behaviour.
It is only after these performance management techniques have been tried, but failed to improve an employee’s performance, that the employer can dismiss the employee for something less than serious misconduct. The three warnings thing is more about protecting the employer from any legal argument that the employer did not give the underperforming employee sufficient notice of their performance issues, than it is an express legal protection for an employee.
So do you best, worker bee, and try not to do anything too silly at work. Your job may be horrible, but at least it helps pay the bills, right?