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After studying this chapter, you should be able to: 1. Explain the concepts of employee rights and employer

responsibilities. 2. Explain the concepts of employment-at-will, wrongful discharge, implied contract, and constructive discharge. 3. Identify and explain the privacy rights of employees. 4. Explain the process of establishing disciplinary policies, including the proper implementation of organizational rules. 5. Discuss the meaning of discipline and how to investigate a disciplinary problem. 6. Differentiate between the three approaches to disciplinary action. 7. Identify the different types of alternative dispute resolution

procedures. 8. Discuss the role of ethics in the management of human resources.

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11.0

INTRODUCTION

Employee rights and discipline are some of the main managerial issues in employment and labor relations. If we look at the job scenario nowadays, there are many employers who have taken the steps to terminate the services of their workers as a way to reduce the operation cost. Through the collaboration and reconstruction that have been done, there are many organizations offer voluntary separation scheme (VSS) as one means to lessen the numbers of workers they already have. Nevertheless, there are also workers who have been resigned without receiving any compensation and logical reasons.

Apart of using the excuse of the economic crisis, employers also use of excuses like indiscipline and do not present a good performance in work as what is expected just so they could sack the workers. There are workers who are given hard punishment for a little mistake they did and there are some who are not given the chance to defend themselves after they have been accused. However, there are not many who are brave enough to come forward and lodge a report for they do not know their rights as workers. When managers take an action against employees for violating an organizational work rule or for poor performances, the manager uses the organizational disciplinary procedure to resolve the problem. Some organizational have very formal disciplinary procedures, others are less formal and some may have no set of procedures at all. Managers should view discipline as a corrective and preventive measure, putting the wrong employee back on the right path instead of punishment for going wrong.

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11.1

UNDERSTANDING THE EMPLOYEE RIGHTS AND PRIVACY AND EMPLOYERS RESPONSIBILITY

Employee rights and workplace privacy and employee discipline continue to have a major influence on the activities of both employees and employers. Furthermore, managers are discovering that the right to discipline and discharge employees which is a traditional responsibility of management is more difficult to exercise in light of the growing attention to employee rights. Disciplining employees is a difficult and unpleasant task for most managers; many of them report that taking disciplinary action against employee is the most stressful duty they perform. Balancing employee rights and employee discipline may not be easy, but it is a universal requirement and a critical aspect of good management as shown in Figure 11.1.

Various laws, statutes, rules and procedures have secured basic employee rights and brought numerous job improvements to the workplace. Employee rights litigation concerns such workplace issues as employees rights to protest unfair disciplinary action, to question genetic testing, to have access to their personal files, to challenge employer searches and monitoring, and to be free from employer discipline for offduty con

Figure 11.1: Illustration of Employer responsibilities on employee

Employer Responsibilities Balanced against employee rights is the employers responsibility to provide a safe workplace for employees while guaranteeing safe, quality goods and services to consumers. The failure of employers to honor employee rights can result in costly lawsuits, damage the organizations reputation and hurt employee morale.

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 Negligent Hiring In law, negligence is the failure to use a reasonable amount of care when such failure results in injury to another person. Negligent hiring is a doctrine that places liability on the employer for actions of its employees during the course and scope of their employment. A general responsibility exists for employers to exercise reasonable care in preventing employees from intentionally harming other employees during their course of work. When one employee commits a violent act on another employee, the employer may face a negligent hiring lawsuits claiming that the employer fail to use reasonable care in the hiring of its employees. Negligent hiring forces managers to take extra care in the employment and managing workforce.

Employees Job Protection Rights Snell and Bohlander (2010) defined employee rights as guarantees of fair treatment from employers, particularly regarding an employees right to privacy. It is a warranty that workers will get a fair treatment from the employer throughout their service. As employee rights continue to develop, employers will be required to assume greater responsibilities to employee by providing a safe and efficient workplace while providing safe and quality goods and services to consumers.

Employees regard their jobs as an established right that should not be taken away without just cause or proper reason. Even though there is no guarantee that jobs are property rights of employees, however, employees have right to expect sound employment practices (fair and just) from employer. There are several legal considerations that need to be observed regarding job protection rights or security of employees job.

In Malaysia, there are many employees job protection rights that have been listed out in various acts such as Workers Compensation Act 1952, Employment Act 1955, Employees Provident Fund 1991, Human Resource Development Act 1992, Trade Unions Act 1959, Industrial Relations Act 1967 and Occupational Safety and Health Act 1994 as well as Employee Social Security Act 1969. Workers need to know a little bit about the acts which related to them so that they are not easily being oppressed by the employer. Figure 8.2 shows the example of employees right with regard to job protection.

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Figure 8.3: Sample of Employee Rights on Job Protections Source: Snell and Bohlander (2009)

Privacy Rights The right of privacy can be regarded as a matter of personal freedom from unwanted government or business intrusion into personal affairs. Employee privacy is recognized as one of the most significant workplace issues facing companies today. However, employer challenges to privacy right defend their intrusion into employee privacy by noting their legitimate interest in some of the personal affairs of employees, particularly when those affairs (such as drug abuse, criminal activity and co-worker dating) may directly affect employee productivity and workplace safety and morale. Figure 8.3 shows the example of employees right to privacy.

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Figure 8.4: Sample of Employee Rights on Privacy Source: Snell and Bohlander (2009)

Activity 1 : Find the details of job protection rights and privacy rights in the textbook written by Snell and Bohlander (2010) page 571 -587).

Employee Discipline Employees should take note that if their rights to job protection and privacy have been provided by employers with reasonable care, any violations done by employees are subjected to disciplinary action. Disciplinary action taken against an employee must be justified based on effective policies and procedures to govern its use.

Even though discipline is very important in an organization, it is one of the challenging fields in the function of human resource management. The main objective of discipline is to motivate employees to obey standard performance that have been set by the organization. Discipline is also used in constructing or maintaining the respects and trustfulness among the employer and the employees. However, of it is not being well managed, it can stimulate problems like decreasing employees motivation, provoke the employees fury and also starts an unhealthy situation between the employer and the employees.

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Definition of Discipline Discipline also can be defined as an action taken against an employee who has violated an organizational rule or whose performance has deteriorated to the point where corrective action is needed. According to Snell and Bohlander (2010), discipline can be defined as: Treatment that punish Orderly behavior in an organizational setting Training that molds and strengthens desirable conduct or corrects undesirable conduct as well as develops self control. In general, discipline is a penalty or punishment (corrective mechanism) against an employee who fail to meet established standards or violate the rules to prevent more serious harm to the organization.

Objectives of Disciplinary Action Amongst the objectives of disciplinary action are as follows: To establish equitable set of guidelines and procedures for the administration and resolution of misconduct for all employees. To establish relevant disciplinary procedure. To encourage, promote and regulate discipline in the organization. To signal to employees the level of expectation and standards of performance and behavior.

11.3

A DISCIPLINARY MODEL

HR department is responsible for the development of the organizations disciplinary policy as well as ensuring that the policy is administered in a fair and consistent manner throughout the organization. Organization policies and procedures act as a guideline to assist those responsible for taking disciplinary action and help ensure that employees will receive fair and constructive treatment. These guidelines help prevent disciplinary action from being voided or reversed through the appeal system. Figure 8.5 shows an example of company rules and regulations on discipline.

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Figure 8.5: A Sample of Company Rules & Regulations Source: Maimunah Aminuddin (2009)

Figure 8.6 presents a disciplinary model that illustrates the logical sequence in which disciplinary steps must be carried out to ensure enforceable decisions. If discipline becomes necessary, the employees immediate supervisor is the logical person to apply the companys disciplinary procedure and monitor employee improvement

Figure 8.6: A Disciplinary Model Source: Snell and Bohlander (2010)

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11.4

RESULT OF DISCIPLINE INACTION

Studies show that it is a common characteristic of many supervisors to avoid taking disciplinary action against employees. There are few reasons why managers fail to take an action with regard employee discipline as follows: Failed to document earlier action. Receive little or no support from higher management. The supervisor was uncertain of the facts underlying the situation requiring disciplinary action. The supervisor wanted to be seen as a likeable person.

Therefore, to enhance the disciplinary action in the organization, the following actions need to be done or taken into account by manager who responsible for taking disciplinary action. Corrective action must be taken as soon as possible because failure to take disciplinary action will affect other areas of HRM. If the management has been in lax in the enforcement of a rule, the rule must be restated along with the consequences for its violation, before disciplinary action can begin. Have employees sign that they have read and understand the organizational rules.

11.5

CAUSES OF DISCIPLINARY ACTIONS

There are many factors that could cause disciplinary actions to be taken against employees. According to Ivancevich (2001), disciplinary actions usually caused by employee misconducts such as the following: Lack of knowledge about jobs. Emotional problems. Motivational problems. Physical problems. Family problem. Problems with colleagues. Problems caused by the company policy. Problems relating to society value. Problems in terms of occupational context.
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Within organizational context, misconducts can be categorized into two (2) namely, minor misconduct and major misconduct (Snell and Bohlander (2009). Conduct is defined as exercising behavior that is consistent with organizational expectations required in the workplace either voluntary or obligatory in order that work can be maintained. Meanwhile, misconduct is an improper behavior that violates the standards rules of an organization. It is an intentional willful wrong-doing or deliberate violation of a rule or standard behavior by the employees. Table 8.1 and Table 8.2 show examples of employee misconduct and types of employee misconducts respectively.

Table 8.1: Examples of Employee Misconduct Source: Snell and Bohlander (2009)

Table 8.2: Types of Misconduct Source: Snell and Bohlander (2010)

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11.6

INVESTIGATING THE VIOLATION OF ORGANIZATIONAL RULES

In handling employees that violate organizational rules and policies, managers who responsible to take disciplinary action should do the following: Complete documentation of employee misconduct. Conduct the investigative interview.

Documentation of employee misconduct In conducting an employee investigation, it is important to be objective and to avoid assumptions, suppositions and biases that often surround discipline cases. When investigating employee misconduct, the proper documentation is vital. The maintenance of accurate and complete records, therefore, is an essential part of an effective disciplinary system. Employee misconduct must be recorded immediately, complete, detail and accurate. The following items should be included for documentation of employee misconduct. Date, time, and location of the incidents). Description of the problem/misconduct. Consequences of misconduct on employee and/or work unit. Prior discussions with employee about conduct. Disciplinary action to be taken and specific improvement expected. Consequences for employee if behavior is not changed and follow-up date. Reaction of employee to supervisors efforts. Names of witnesses to incident.

Conducting the investigative interview Before any disciplinary action is initiated, an investigative interview should be conducted to make sure employees are fully aware of their offense. This interview should focus on how the offence violated the performance and behavior standards of the job. When conducting investigative interview, manager must ensure the following items are fulfilled: How the offense violated the performance and behavior standards of the job. Avoid getting into personalities or areas unrelated to job performance. Consider the job related performance. Employee must be given a full opportunity to explain his or her side of the issue.

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 Employee must be given right to representation by union representatives (if any).

11.7

DISCIPLINARY APPROACHES

If a thorough investigation shows that an employee has violated some of organization rule, disciplinary actions must be imposed. Employers are actually able to use any disciplinary approaches which were considered appropriate when considering that employees committing an offence. There are three (3) types of disciplinary approaches such as progressive, positive and hot stove.

Progressive discipline approach This is the most commonly used form of disciplinary approach. This approach treats disciplinary problems in phases whereby the punishment will be more severe should the same offence be committed again. The penalty imposed to the employee is appropriate to the severity or stages of the offences or violations made by employees as shown in Figure 8.7. Progressive approach allows employees to mend their behavior before facing punishments such as termination. There are four (4) steps involved in this approach.

Figure 8.7: Suggested Disciplinary Action for Violation of Rules using Progressive Approach Source: Gary Dessler (2009)

Oral warning Oral warning or verbal warning is given to employees who have committed their first offences by their supervisors. The supervisors will then warn that the punishment will be more severe if the same offence be repeated in the future.

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 Written warning Written warning or formal warning as shown in Figure 8.8 will be given to the employees who are committing the same offence by way of a warning letter. The offences will be documented in their files and the employees will once more be told that a stricter punishment will be taken should it occur again.

Figure 8.8: An Example of a Written Warning Source: Gary Dessler (2009)

Suspension without pay If the employees still fail to adhere to the instructions, they will be suspended from work without pay. At this stage, the employee will be given a final warning and should they fail to address the problem, termination is the most likely punishment.

Discharge or termination Termination is the last resort to be taken should the employee still unable to follow the instruction given. The comprehensive process is shown in Figure 8.9

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Figure 8.9: Progressive Discipline Procedure Source: Mathis and Jackson (2006)

Positive discipline approach. It is a system of discipline that also known as problem solving approach focuses on the early correction of employee misconduct, with the employee taking total responsibility for correcting the problem. This approach is built upon cooperative environment whereby employee and employer discussed and find the solution for the problems. The problems are to be rectified and do not require any sorts of punishment. Positive approach replaces punishments with that of counseling sessions between supervisor and employees in whom employees are expected to correct his misconduct voluntarily. There are four (4) steps to implement positive discipline.

First conference It is quite similar to progressive approach however; employees will be given counseling and oral reminder at first conference. Both parties also are expected to discuss the problems at hand and to find the appropriate solution.

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 Second conference If the employees are failed to improve their performance or repeats the same offence, both parties are expected to meet once more and discuss the reasons why the solution did not materialize. At this stage the solution agreed by both will be documented for further action and will be kept in employees personal file.

Decision making leave or decision day When employees; still failed to adhere to the written agreements as agreed, they will be called again and be given a final warning. Certain organization would consider offering a days off with pay to give the employee tome to ponder whether to continue to work in the organization.

Termination Failure to improve their working performance or a repetition of the same offence will result in the termination of the employee. The comprehensive positive approach is shown in Figure 8.10.

Figure 8.10: Positive approach procedure Source: Snell and Bohlander (2009)

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 Differences between progressive approach and positive approach Table 8.3 summarized the differences between progressive approach and positive approach.

Table 8.3: Differences between progressive approach and positive approach

Hot Stove approach. Certain managers believe that this approach is more effective than the others for it applies the concept of taking necessary precautions. This approach has the characteristics of warning, instant in nature, consistent and not personal. The explanations of the characteristics are as follows: Provides early warning It is extremely important to provide advance warning that punishment will be taken due to unacceptable behavior. Manager usually informed all employees regarding the warning system be it in written or in oral form. Since the manager is the closest to the employees, thus, it is their responsibility to remind the employees from time to time.

Burns immediately The punishment must occur immediately so that the individual will understand the reason for it. An immediate burn of disciplinary action is taken when it comes to this approach, as soon as an investigation is concluded. With this, the employees will immediately understand the correlation between the effects of their offences through the penalties imposed.

Gives consistent punishment The punishment given should be consistent whereby anyone who performs the same act will be punished the same way.

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 Burns impersonally Disciplinary actions should be taken in a non personal matter as a form of correcting certain inappropriate behaviors of employees. The punishment given should be impersonal without favoritism.

Activity 2 : Find out what types of disciplinary approach used by your organization? Do you think that it will help your organization in handling employees discipline?

11.8

DISCHARGING EMPLOYEES

During the duration of investigation, the employer can suspend the employee for about two (2) weeks. When employees fail to conform to organizational rules and regulations, the final disciplinary action in many cases is discharge or termination. Employer can terminate the employment contract of the employees after an investigation has proven that the employee has committed an offence. Because discharging has serious consequences for the employee and the organization, it should be taken only after a deliberate and thoughtful review of the case had been done. If employers intend to terminate the employees, below are few tips to be followed (Snell and Bohlander (2010).

Dismiss employees if there are valid reasons Employers should fully understand the reason of firing the employee. The reason should be in line with the regulation and practices of the organization.

Follow the correct procedures Employer must make sure that termination process is according to the law and regulation. Before decision to fire the employees is made, inform them beforehand the offences that they have committed.

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 Document all problems relating to employees performance If employer intends to terminate the employee, make sure that the offence is documented properly, if not, they might use it as an excuse for unfair dismissal.

Consistency in dealing with employees Employers must ensure that the termination process is conducted fairly and just to the employees.

In discharging the employees, employers should have exercise reasonable care prior for termination. Every effort should be made to ease the trauma a discharge creates. Such action can help the employee face the problem and adjust to it in a constructive manner. This includes the following:

Informing the employee Regardless of the reasons for a termination, it should be done with personal consideration for the employee affected. Employees must be informed honestly, tactfully of the exact reason of termination. Here are several guidelines when informing the employees the decision for termination. Come to the point within the first 2 or 3 minutes and list in a logical order all reasons for the termination. Be straightforward and firm yet tactful and remain resolute in your decisions. Make the discussion private, businesslike and fairly brief. Dont mix the good with bad. Avoid making accusations against employee and injecting personal feelings into the discussion. Avoid personality differences between you and employee. Inform about severance pay and the status of benefits and coverage. Inform how you will handle employment inquires from future employers.

Termination meeting should be held in a neutral location, such as conference room, to prevent the employee from felling unfairly treated. Managers are advised never to discuss the discharge or terminated employee with other employees, customers and other individuals.

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 Due process Due process is also known as domestic inquiries. Normally, due process is provided employees through the employers appeal procedure. It is an internal hearing held by employer to determine whether an employee is guilty of an act of misconduct, for the purpose of employees right to be heard. Employee must be given the opportunity to present his or her side of the story and the opportunity to defend or explain their side of the story. This is to ensure a full and fair investigation of employee misconduct occurs. The Principles of Natural Justice should be practiced at due process session. Nemo Judec In Causa Sua It is the rule against bias in which no one to be judge in his own cause.

Audi Alteram Partem It is a rule requiring a fair hearing that includes the following: Worker has the right to know what he is accused for. No one should be condemned unheard. Worker must be given time to reply for accusations. An unbiased party must be conducting the inquiry.

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11.9

ISSUES OR PROBLEMS IN DISCIPLINARY PROCESS

Figure 8.11 below shows some of the disciplinary issues or problems. Take note that most of the problems are contributed by the manager that makes the disciplinary action is ineffective and fail to correct the employee misconduct.

Figure 8.11: Issues or Problems Associated with Disciplinary Action Source: Snell and Bohlander (2009)

Activity 3 : Based on the issues or problems shown in Figure 8.11, rank the problems from the most serious to the less serious problems. Identify the main issues or problems relating to disciplinary action at your workplace.

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11.10

GUIDELINES FOR THE IMPLEMENTATION OF ORGANIZATIONAL RULES

Below are several guidelines that can be used during the process of determining what kind of disciplinary action to be decided by the responsible party as shown in figure 8.12. Figure 8.13 illustrates the sample of disciplinary procedures based on several guidelines.

Figure 8.12: Guidelines for the Implementation of Organizational Rules Source: Snell and Bohlander (2009)

Figure 8.13: Sample of Disciplinary Guideline

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Activity 4 : Based on Figure 8.11, identify whether your organization is currently having this guidelines in disciplinary manual.

11.11

ALTERNATIVE DISPUTE RESOLUTION PROCEDURES

For organizations that have worker union, the procedures to maintain employees right and privacy are usually contain in the collective agreement. However, organizations that do not have workers union, the Alternative Dispute Resolution (ADR) procedure are used. There are several methods used in ADR are: Step review system It is a dispute resolution system for reviewing employee complaints and disputes by successively higher levels of management. This system is an examination of complaints in a step-by-step manner. Figure 8.14 shows the process of examining the complaints using step review system.

Figure 8.14: Conventional Step-Review Appeal Procedure

Peer-review systems It is a system for reviewing employee complaints that utilize a group composed of equal numbers of employee representatives and management appointees. This complaints committee functions as a jury since its members weigh evidence, consider arguments, and after deliberation, vote

independently to render a final decision.

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Open-door policy It is a policy that helps settle employee grievances by identifying various levels of management above the immediate supervisor for employee to contact. Normally someone in the organization is designated as the person of final authority to render decisions. Normally, employees will look for certain managers who they trusted to forward their complaints.

Ombudsman system Ombudsmen are designated individuals to whom employees may go for resolution of their grievances. These individuals have no power to finalize a decision. Ombudsmen use the technique of mediationalong with the power of persuasionto reach a cooperative settlement between the employee and management.

Mediation Mediation uses the assistance of a third-party neutral to resolve employee complaints. Mediators can be designated individuals within the organization or they may be selected from outside the company. Mediators have no power to render an award over employee complaints. Rather, they use the techniques of persuasion, fact gathering, communication, and suggestions to fashion a settlement the employee and management can accept. A large benefit of mediation is that the parties maintain control of the procedure itself and the settlement reached. Theoretically, there are no winners or losers in mediation. The parties are responsible for crafting the final settlements.

Arbitration Arbitrators are third-party neutrals who have the legal power to finalize an employee complaint. Arbitrators make employment decisions that the parties must comply with.

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11.12

SUMMARY

Discipline is an important approach where the management utilizes as a tool to monitor and control the employees conduct. In disciplining the employees, management can adopt several approaches to ensure both party benefited from the disciplinary action. Management must ensure that their action does not backfire by having a clear disciplinary action process. Most organizations will impose severe action after several flexible actions taken failed.

1. List at least FOUR important factors in managing dismissal effectively. 2. Describe what due process is and explain the alternative dispute resolution. 3. Differentiate between the positive approach and progressive approach. 4. Discuss methods available to conduct disciplinary action. 5. Why has the positive approach to discipline been useful in reducing employee lawsuits? 6. Discuss advantages and disadvantages using hot stove approach. 7. Explain how you would ensure fairness in disciplining your employees?.

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Study Notes

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