COMMON LAWFUL DISMISSAL
By Faudzil Harun
Dismissal on the Ground of Misconduct
Section 14 – Termination of contract for special reasons
(1) An employer may, on the grounds of misconduct inconsistent with the
fulfillment of the express or implied conditions of
his service, after due
inquiry-
(a) dismiss without notice the employee;
(b) downgrade
the employee; or
(c) 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.
(2) For the purposes of an inquiry under subsection (1), the employer may
suspend the employee from work for a period not
exceeding two weeks
but shall pay him not less than half of his wages for such
period:
Provided that if the inquiry does not disclose any misconduct on the part
of the employee the employer shall
forthwith restore to the employee the
full amount of wages so withheld.
(3) An employee may terminate his contract of service with his employer
without notice where he or his dependent are immediately
threatened by
danger to the person by violence or disease such as such employee
did
not by his contract of service undertake to run.
Dismissal due to Poor Performance and Ineffeciency
Poor performance and inefficiency are good reasons for dismissal. In the
event of poor performance and inefficiency or unsatisfactory work being the
reason for dismissal, the employer bears the burden of proof. The employer must produce convincing evidence
that the workman is guilty of the charge.
Provide Clue to Poor Performance and Inefficiency
The Industrial Court is a court of equity and it is not going to be sympathetic to employer who has non-performing employee but the employer does not provide clue or inform the employee that his performance is unsatisfactory or not performing at the required standard. The employer must give a clear warning that if the employee do not correct and improve his performance, than the employer shall have no other choice but to take serious actions including dismissal.
Provide Clue to Poor Performance and Inefficiency
The Industrial Court is a court of equity and it is not going to be sympathetic to employer who has non-performing employee but the employer does not provide clue or inform the employee that his performance is unsatisfactory or not performing at the required standard. The employer must give a clear warning that if the employee do not correct and improve his performance, than the employer shall have no other choice but to take serious actions including dismissal.
Procedure for
Dismissal
1. Informing employee of his poor performance
● The employer must inform the employee as to the nature of the poor
performance and the acceptable standards that is
required.
● The employer must find out why the employee is not performing.
2. Provide the employee the opportunities to improve his performance
● After the employer identifies the causes of the poor performance, the
● The employer must find out why the employee is not performing.
2. Provide the employee the opportunities to improve his performance
● After the employer identifies the causes of the poor performance, the
employer must provide assistance to overcome these
problems.
● The employer must provide appropriate training, sufficient tools and
● The employer must provide appropriate training, sufficient tools and
guidance to the employee.
● Employer must conduct close monitoring of the performance of the
● Employer must conduct close monitoring of the performance of the
employee. The employee must be informed of the monitoring
exercise.
3. Giving warning to the employee of his non improvement
● If the employee on his own fault fails to make improvement of his
3. Giving warning to the employee of his non improvement
● If the employee on his own fault fails to make improvement of his
performance, the employer must instantly warn the employee.
● The employer must give the employee the reasonable period of time
● The employer must give the employee the reasonable period of time
for the employee to make improvement, failing that serious
action will
be taken by the employer including dismissal.
4. Proof of failure of the employee to improve his performance
The employer will have to established that he has indeed provided the
4. Proof of failure of the employee to improve his performance
The employer will have to established that he has indeed provided the
employee with the appropriate assistance and
reasonable period of time
for the employee to make improve his performance and the
employee has
not make any improvement on his performance despite the
opportunities
provided by the employer.
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Important !!
There must be sufficient communication to the employee to established poor performance or inefficiency before the employer can rely on it to later justify dismissal.
Important !!
There must be sufficient communication to the employee to established poor performance or inefficiency before the employer can rely on it to later justify dismissal.
In TWU v Toong
Foong – I/C Award 103/77 the court stated :
‘Dismissed
workers should ask “have I given unsatisfactory service or have I caused a
problem to my employer that merits my dismissal or termination? If he can
sincerely and honestly answer “no” to these questions, then the court will
always sympathise with him and will extend its fullest sympathy to him, but if
he for one moment hesitates to answer ‘no’ to either question then I would
advise him to stay away from this court and not waste his time and everybody’s
time.’
Conversely an employer who is not able to prove poor performance on the part of the employee cannot expect the sympathy of the court.
In Smith and Wood Industrial Law (page 302) states :
“In the realm of dismissal for incapability, it is important the employee whose work is causing dissatisfaction should be treated fairly. The question for the tribunal is whether the employer has satisfied them that he genuinely believed on reasonable grounds that the employee was incapable. The requirement of reasonable grounds means that the employer should make a proper and full investigation into the facts of the case;…… whether the employee was given proper training for the job, adequate supervision and, where appropriate, proper support from the employer.
Also it is well established that this area is amenable to the application of a warning procedure, though the emphasis may be different from that in misconduct cases for here the constructive side of a warning may be more important, not only pointing out the employer’s ground for complaint but also instructing the employee how to improve and giving him reasonable time in which to do so. The importance of a fair procedure in this area should not be underestimated, and lack of it leads to inadequate investigation by the employer that can make the dismissal of an incompetent employee unfair.
The rationale underlying the requirements of a due inquiry in the case dismissal for misconduct ought to apply equally to the procedure to be taken by employers in the dismissal of an employee for incapability.”
Caution !!
Salary increment and bonus
If an employee who is not performing received salary increment and bonus equally to others, he can use these to get the sympathy of the court.
Commendation and praise
Any kind of commendation and praise can be used by the employee to prove his performance was not wanting. If the employee is not informed of his poor performance, these commendation and praise would cause problems to the employer.
Conversely an employer who is not able to prove poor performance on the part of the employee cannot expect the sympathy of the court.
In Smith and Wood Industrial Law (page 302) states :
“In the realm of dismissal for incapability, it is important the employee whose work is causing dissatisfaction should be treated fairly. The question for the tribunal is whether the employer has satisfied them that he genuinely believed on reasonable grounds that the employee was incapable. The requirement of reasonable grounds means that the employer should make a proper and full investigation into the facts of the case;…… whether the employee was given proper training for the job, adequate supervision and, where appropriate, proper support from the employer.
Also it is well established that this area is amenable to the application of a warning procedure, though the emphasis may be different from that in misconduct cases for here the constructive side of a warning may be more important, not only pointing out the employer’s ground for complaint but also instructing the employee how to improve and giving him reasonable time in which to do so. The importance of a fair procedure in this area should not be underestimated, and lack of it leads to inadequate investigation by the employer that can make the dismissal of an incompetent employee unfair.
The rationale underlying the requirements of a due inquiry in the case dismissal for misconduct ought to apply equally to the procedure to be taken by employers in the dismissal of an employee for incapability.”
Caution !!
Salary increment and bonus
If an employee who is not performing received salary increment and bonus equally to others, he can use these to get the sympathy of the court.
Commendation and praise
Any kind of commendation and praise can be used by the employee to prove his performance was not wanting. If the employee is not informed of his poor performance, these commendation and praise would cause problems to the employer.
Dismissal on Medical Ground
Employees
who are on prolonged illness or long medical leave pose special problems. As
seen from NUPW v Kumpulan Kamuning :
‘…… if there is some chance of recovery then frustration will not set in. If
the employee is suspected to be a malingerer there is the temptation to dismiss
him. However an employee who is sick cannot be dismissed just because he is
sick and properly vouched by a certificate issued by a competent authority.
If the employer is a large organization, they could manage the work with the existing numbers but in smaller organizations the need for replacement would be real.
Larger organization also cannot run away from the obligations of social conscience to assist the employee to continue his employment by adjustments to the job content, by transfer or by creation of a special job for the sick employee, though this does not mean he is obliged to create jobs that did not previously exist.
Medical Boarded Out
If the employee is genuinely sick then he could be sent for a medical board to determine the state of his health and whether there are chances of him coming back. If he is recommended for medical boarding out then he should be retired and be given his retirement benefits in accordance with the company practice or the Collective Agreement (CA) if he qualifies for the retirement benefits.
If retirement benefits are not provided in the contract of employment or the CA then the employee would qualify for termination benefits under the Employment Act, 1955. If employee is not covered by the Employment Act 1955, the matter would be at the discretion of the employer to offer some payment for his long and faithfully service. The employee should also be advised to claim for invalidity pension under the SOCSO laws if he is a contributor.
In B.B. Socfin Group Hospital v Mathew Phillip – I/C Award 327/94, the estate hospital assistant was dismissed on medical advice of the visiting medical officer of the estate. The hospital assistant was reported to be suffering from a severe form of epilepsy and the visiting medical officer of the estate was not willing to be liable in the event the fits occurred while the employee was administering drugs or medicine to his patients. However a consultant neurologist gave evidence that with treatment the condition could be completely controlled. The Industrial Court held the dismissal to be without just cause and ordered reinstatement.
In Kesatuan Pekerja-pekerja Redifusion v Rediffusion (M) Sdn Bhd, the employee a wireman was certified capable of doing light duties indoors only. The company offered him light duties at a lower salary but on the maximum of the lower grade. The employee refused the offer and his service was terminated. The court held that the employee was unreasonable and there was no wrongful dismissal.