HR MANAGEMENT - Disciplinary Punishment

DISCIPLINARY PUNISHMENT

By Faudzil Harun

The Obligation to Observe Company Guideline   

If the company has a clear guidelines on disciplinary procedure, it would be unwise to ignor them when punishment is meted out.

In Asean Food Handling Bureau v Puan Monica A. Fernando, I/C Award 340/87, the Industrial Court in reinstating the workman held that the dismissal of the workman was in contravention of the organisation’s own agreed rules. The disciplinary procedure of the employer stated that no employee should be terminated for unsatisfactory performance without warning.

In Mercantile Co-op Thrift & Loan Society v Mazlan b Bador I/C Award 30/93, the disciplinary procedure provided several forms of punishment – namely warning, suspension, demotion, witholding of increment, reduction of pay and dismissal. Dismissal is the severest and was against the recommendation of the prosecuting officer. The court ruled that the disciplinary procedures must be followed and held that the dismissal was harsh.

It is advisable for every employer to observe the obligations by both party before coming to a decision. The following shall be a useful guideline :

Employer’s Obligation

1.  Provide written “understandable” information on the company’s rules and 
     procedures.
2.  Provide “clear” guideline on employee’s job scope and responsibilities 
     through a properly drawn job description.
3.  Provide “clear” guideline of performance standards and performance 
     expectations.
4.  Provide appropriate training, coaching, counseling and supervision.
5.  Provide fair and consistent enforcement of rules and procedures.
6.  Develop, communicate and implement performance measurement system.

Employee’s Obligation

1.  Present himself for work at the designated day and time.
2.  Give honest and faithful service.
3.  Provide and use reasonable skill and care in performing his duties.
4.  Obey all reasonable rules and orders given to him.
5.  Consistently practice good conduct.
6.  Give full disclosure where there can arise a conflict of interest situation.



Penalties Available Under the Employment Act, 1955

Section 14 (1) of the Employment Act, 1955
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.


Considering Mitigating Factors

Apart from the nature of the particular offence, arbitrators have identified other factors that tend to aggravate or mitigate the seriousness of the griever's misconduct and necessarily affect the nature and extent of the penalty that is warranted.

The following are mitigating factors that could mitigate the gravity of the misconduct :

• Good employment record?
• Record of long service?
• Free disciplinary record?
• Isolated incident in the employment history or repetitive?
• Incident committed on the spur of the moment or premeditated?
• Admission to misconduct?
• Contriteness?
• Did the penalty imposed create a special economic hardship in light of the circumstances?
• Were the employer's rules of conduct enforced uniformly?
• Was the grievor advised that such misconduct would no longer be tolerated?
• Does the grievor occupy a position of trust?
• Did management condone previous incidents?
• Is the discipline consistent with management's policies and previous practice?
• Was the employee's conduct induced by certain acts of provocation on part of management?
• Does the grievor have the ability and willingness to reform or rehabilitate themselves?
• What was the griever's state of mind and intention at the time of the offence (emotional problems, drug abuse, alcoholism)?

Considering the Principles of Substantive Justice     

Even if a properly conducted domestic inquiry finds a workman guilty, there could still be a travesty of justice in the punishment imposed by the employer.

In establishing the truth or fair view of the truth based on the balance of probabilities, domestic inquiry procedure must incorporate the Principles of Natural Justice. In determining the punishment, the Principles of Substantive Justice must apply for justice to be fully manifested.

In Goodyear Malaysia Bhd v National Union of Companies Manufacturing Rubber Products, I/C Award 88/86, the Court stated that :

“It must be noted that not all misconduct deserves dismissal, which has been described as the capital punishment in industrial relations. Important circumstances which mitigate the offence of the workman should be taken into account by the employer before he can be said to have made a fair and reasonable decision to dismiss. For example, a workman’s past record of good service, or the management’s own actions or omissions which contributed to the misconduct, are mitigating factors which any reasonable company would take account of before dismissing. Length and quality of service, good unattained record, and past service awards and recognition must also be taken as extenuating circumstances when an employer decides the appropriate punishment for misconduct. In the circumstances of the case, the Court has to conclude that the company failed to act of disobedience. We feel that ordinary common sense would have been enough to guide the company to impose a lesser punishment on each of the claimant.”