Gross misconduct gap in labour law is over

The existing law on labour, technically referred to as law n° 66/2018 of 30/08/2018 regulating labour in Rwanda, prescribes gross misconduct as a ground for termination of employment contract without prior notice.

Article 26 of the Labour law states that: “the employer terminates employment contract without notice in case of employee’s gross misconduct.

 

If employment contract is terminated for gross misconduct, the employer must notify the employee within forty-eight (48) hours of the occurrence of evidence of the gross misconduct specifying the grounds for termination”.

 

The same provision provides a gap to be filled by a relevant Order. This Order has been long-awaited.

 

But the law loosely describes gross misconduct as the severity of the action, omission, conduct, its circumstances or consequences such as the employer can no longer continue to employ him or her [employee].

Generally, misconduct is considered a serious deviation from generally accepted practices in a certain discipline.

The advantage of such a vaguely formulated definition is that it allows more freedom with which to proceed against aberrant conduct.

If what constitutes misconduct is formulated very specifically, it can later transpire that a new form of deception cannot initially be classified as misconduct nor can sanctions be imposed as appropriate.

Misconduct also refers to dereliction of duty or unlawful or improper behavior. Conduct is gross misconduct if it is so outrageous that it shocks the conscience.

With respect to gross misconduct refers to behavior that can get a person dismissed straight away from work because it is serious enough and possibly criminal.

The new Ministerial Order n° 002/19.20 of 17/03/2020 establishing the list of gross misconduct under Article 1 outlines a list of gross misconduct that is committed by an employee which leads to termination of employment contract without prior notice.

Specifically, Article 2 provides a long list of acts considered as gross misconduct, including “theft; fraud; fighting at workplace; taking alcoholic drinks at workplace; to be on duty under the influence of alcohol or drugs; falsification; any form of discrimination at workplace; sexual harassment; soliciting, offering or receiving bribes or illicit benefit; embezzlement; unlawfully obtaining or disclosing professional confidential information; behavior that may endanger the health and safety of others at workplace; gender-based violence at workplace; illegal strike; and intentional destruction of work equipment.”

As noted earlier, once any of the above acts is undoubtedly committed, it constitutes gross misconduct that legally allows the employer to terminate the employee’s contract without prior notice.

Furthermore, in the provision, the employer is vested with the authority to determine other acts in addition to those provided for by the Order. But such acts must be embodied in the internal rules and regulations of the Organisation. For where they’re not embodied in the internal rules of the organization, they must be provided, perhaps, in the employment contract. That’s to say a list of acts constituting gross misconduct under Article 2 of the foregoing Order is, however, not comprehensive.

It is strongly advisable to give employees a clear indication of the type of behaviour you consider to be gross misconduct. They may be put in the contract of employment itself or in a staff handbook.

Identifying such behaviour in advance will help to demonstrate later on that you regard it as significant.

The internal rules set out the basic requirements of fairness and give a minimum standard of reasonable behaviour. Somewhere these internal rules are incorporated into the company’s policy.

There are certain types of an employee’s action or behaviour which will normally amount to gross misconduct.

Indeed, intentional behavior is needed to support a finding of gross misconduct. An act that deliberately or willfully threatens the employer’s business, or shows repeated disregard for the employee’s obligations to the employer or disregards the standard of behavior which an employer has a right to expect of its employee. So, acting contrary to the acceptance standards constitutes gross misconduct.

How is this Order timely and relevant?

Most workplaces whenever an employee commits an act that would perhaps tantamount to gross misconduct determining it has been a challenge. An employee would not wish such an act to be qualified as gross misconduct.

At the same time, the employers would wish to make a determination based on their own judgment or appreciation.

So, who’s objective and who’s subjective? This Order answers that fundamental question.

Equally, the Order guarantees employees ’ right not to be unfairly dismissed by their employer. Therefore, it ensures that an employee can be dismissed fairly. So an employer must establish facts triggering gross misconduct.

In my view, the Order to a larger extent instills discipline at workplaces by employees. Most employers make an effort to hire quality employees who are both competent and responsible.

Where workers are unable or unwilling to meet acceptable work standards, as a consequence, they may be compelled to part company with the employer.

Discipline and integrity are fundamental virtues expected of any employee to fit in the organisation.

Finally, it’s quite worth mentioning that this implementing Order equally applies to employees in the public sector who are under contracts (basically governed by the labour law).

The writer is a law expert.

The views expressed in this article are of the author.

Subscribe to The New Times E-Paper


For news tips and story ideas please WhatsApp +250 788 310 999    

 

Follow The New Times on Google News