15 April 2013

HR MANAGEMENT - Catogeries of Misconduct






CATEGORIES OF MISCONDUCT

By Faudzil Harun



1.  Misconduct Relating to Duty
     The misconduct must relate to inconsistent of faithful service of the employee.
    
     In Chartered Bank v National Union of Bank Employees, I/C Award 104/83, the
     court said : Employee’s obligation under the contract of employment requires
     him to :-

     1.1  Present himself for work at the designated time;
     1.2  Give honest and faithful service;
     1.3  Provide and use reasonable skill and care in performing his duties; and
     1.4  Obey all reasonable orders given to him.

     In Johor Bahru Foon Yew Associated Chinese Schools v Fan Lim Fah (2000), the
     court held : “The relation of master and servant implies necessary that the
     servant shall be in a position to perform his duty duly and faithfully, and if by his
     own act he prevents himself from doing so, the master may dismiss him.”


2.  Misconduct Relating to Discipline

     The misconduct must relate to the breach of the company’s disciplinary rules.
     The presence of disciplinary is a fundamental element in the employment
     relationship. Employee must accept the authority of the employer to limitation
     of his freedom within the employment relation and committing a breach of
     discipline, it is necessary the employee be punished for the purpose of
     achieving workplace harmony for the entire working society.


3.  Misconduct Relating to Morality

     Employee’s immoral conduct outside working hours and even outside the
     company’s premise would be misconduct if the conduct of the employee was
     prejudicial to the employer’s interest.

     In I/C Award 98/93 – Permint Plywood Sdn Bhd v Kesatuan Pekerja-Pekerja
     Perkayuan Semenanjung Malaysia
the court held : “Immoral behavior after
     working hours is misconduct.”

    Facts of the case
    The claimant invited a female worker to his house for the night when his wife
    was not in. A police raid disclosed the two in the house.

   
Employer’s disciplinary action
A domestic inquiry was held and on finding the claimant guilty, the company punished the employee with a reduction in salary of RM80/-

The court hearing
The union submitted that there was no misconduct as what the claimant did was after working hours and urged that the company was not the general custodian of morals and any act committed in the sphere of private life could not be considered as an act ‘subversive of discipline’.

Decision of the court
The court in upholding the decision of the employer held that all reasonable men may say that he cannot be trusted. The conduct of the claimant was also prejudicial to the interest of the employer as the location of the company was in a rural area and parents of young women would wary of sending their young daughters to work in the company.

In London Asiatic Rubber & Produce Co. Ltd. (Elphil Estate) Sg. Siput v Subramaniam, I/C Award 46/72, the court found the claimant although he was found guilty of fraternizing and having an improper relationship with a former employee outside the estate. The court overruled the dismissal on the grounds that the female ex-labourer was neither staying on the estate nor dependent on her parents who were living on the estate. There were also no complaints from the estate workers as to improper relationship of the conductor (supervisor). Thus one has to look at the circumstances surrounding the offence to determine whether the employee’s conduct deserves punishment.

In TWU v Syarikat Pengangkutan Kemajuan Sri Perak Berhad, I/C Award 161/81, a female employee was dismissed because she spent two nights in the bachelor’s mess at lumut, with a company bus driver. She was dismissed on the grounds her behavior was improper and against Islamic Law and which could ruin the image of the company. The court in ruling the dismissal as unfair agreed with the finding of the tribunal in Cassidy v HC Goodman Ltd. (1975) IRLR 86 that : “For an employee to be justifiably dismissed on the ground of his private conduct it has to be of exceptional gravity or be capable of damaging the employer’s business.” The court held that it couldn’t see how the claimants spending the night in the bachelor’s mess room could have affected a public transport business to the extent of ruining its image.