What constitutes gross misconduct is a mixed question of fact and law. In general terms, “gross misconduct” connotes the most serious types of misconduct. It must be a fundamental breach i.e. a breach going to the heart of the contract.

The misconduct must be gross (i.e. extreme, or abnormal) and culpable (blameworthy). It will be conduct which is incompatible with the employee's duties of fidelity, trust and confidence. This could be, for example, an act of dishonesty or an action intended to damage the employer's interests. It could also be a series of acts which, when taken together, are of sufficient seriousness to amount to a breach of trust and confidence.

You should consider any relevant disciplinary rules contained within your disciplinary policy, if applicable. It will generally be easier for an employer to establish gross misconduct where the misconduct is listed as grounds for summary termination in the disciplinary rules. The LRA Code of Practice on Disciplinary and Grievance Procedures suggests that this is done and gives examples of acts which might be included such as theft, fraud, physical violence, gross negligence or serious insubordination.

You should also consider any instances of the same or similar misconduct by other employees, if applicable. Employers are expected to act consistently and clearly in the standards of behaviour they require from their employees.

Different employers may take different approaches to whether or not something constitutes misconduct or gross misconduct. For example, in a workplace where health and safety is of paramount importance, breach of a health and safety policy is likely to be regarded in a far more serious light than in other organisations. It is therefore important to consider the specific context in relation to the particular employment and employee.

We recommend that, where possible, specific legal advice should be obtained before deciding to dismiss for gross misconduct.