HR MANAGEMENT - What is Misconduct?

WHAT IS MISCONDUCT?

By Faudzil Harun

What is Misconduct?   

It is not an easy question to answer as misconduct takes many forms. A sociologist will tell you that, what constitutes misconduct depends on the values and norms of the society. For example, being a lesbian is taboo to Malaysian but in some cultures, it is more than tolerated. However we are concern here with what constitutes misconduct in employment.

In an employment relationship the employee has certain obligations to his employer. They may be expressly stated in his terms and conditions of employment or simply implied.

The concept of misconduct in employer-employee relationship is based upon the nature of the relationship itself. Any conduct on the part of the employee inconsistent with the faithful discharge of his duties towards his employer can fall within the ambit of misconduct.
                    

Misconduct in Industrial Law                  

In employment law, the term misconduct has been known to be an elusive term and has occupied the considerable time of conciliators, arbitrators and judges. It is therefore understandable that none of our statues like the Employment Act or the Industrial Relation Act have a definition for the term misconduct. For guidance, one needs to look at what the courts and employment tribunals deem as misconduct.

The Industrial Court defined misconduct as “bad management, mismanagement and misfeasance or culpable neglect of an official duty in regard to his office. Both in law and in ordinary speech, the term misconduct usually implies an act done willfully with wrong intention and as applied to professional acts, even though such acts are not inherently wrongful, it means also a dereliction of or deviation from duty.

In general, misconduct is improper behavior, intentionally wrong doing and violation of standard disciplinary rules. Misconduct is subject to disciplinary action after due inquiry.