Criminal conduct in the workplace

It often happens that misconduct which occurs within the workplace is also the subject of a police investigation. When faced with such circumstances, employer’s are sometimes tempted to believe that the problem is no longer their's and simply leave the matter in the hands of the Police. Prior to doing this, of course, they dismiss the employee, believing that the criminal offence is sufficient to justify their action.

Such a course of action can fail to take account of the fact that criminal matters are sometimes separate from employment matters and, if so, must be treated as such. It may be that a criminal action has little or no detrimental effect on the employment relationship and may in fact actually benefit it.

One thinks, for example, of a plasterer who can prove that he only performs his job well when he is 'plastered' with marijuana, the possession of which has resulted in criminal charges. The outcome would be different, of course, if the employer's disciplinary rules made it clear that the possession of marijuana on company premises was an offence.

Whatever the alleged criminal offence, any attempt to dismiss the employee would have to comply with the usual requirements of procedural and substantive fairness, which has been covered previously in this document. The requirement to hold an inquiry should still apply even if the employee is in police custody and the inquiry has to be held in his/her absence.

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