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Discipline in Workplace
Industrial Relations and Employment Acts did not define discipline or misconduct
formally. Generally, a misconduct can be defined as any infringement of the rules and
regulations. These rules and regulations must be necessary and desirable for effective
management or efficient operation of the organization.
Section 14(1) Employment Act 1955 has implies the act of misconduct includes
inconsistent act by employee with the fulfillment of the express or implied conditions of
his service.
According to Industrial Court Awards, misconduct can be defined as
1. Improper behavior, intentional wrongdoing or deliberate violation of a rule or standard
of behavior (Holiday Inn Kuching Vs Elizabeth CS Lee [Award 255 of 1990]).
2. Inconsistent with the maintenance of the relationship created by the contract (Liew
Ken & Others Vs Malayan Thung Pau Berhad [Award 37 of 1974]).
3. Carelessness, negligence and idleness (Sutton & Gates (Luton) Vs Boxall [1979] ICR
67).
4. Implement tasks recklessly, not caring what the result would be (Tractor Malaysia
Berhad Vs Wong Kam Yoon [Award 29 of 1972]).
Types of Misconduct
Companies usually formulate their own rules of conduct, incorporating the
work rules, regulation and safety precautions suited to the nature of their
organization. There are certain types of misbehavior which no employer may
tolerate. These behaviors are generally classified as major and minor
misconduct.
Organizations must specify type of behaviors that are clustered into minor or
major misconduct. This is because if an employee is found guilty doing a
minor misconduct, he/she may be punished by giving a show cause letter or
he/she may received a warning latter. But, if an employees is found guilty
committed with major misconduct he/she may be demoted or even
dismissed depend on the degree of seriousness of the particular misconduct
behavior.
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Discipline
All organizations must have rules, regulations, conditions and procedure in
their attempt to control their employees behavior.
It is important to implement discipline procedure correctly in order to
eliminate disputes.
Disciplinary Procedure/Process
The purpose for a disciplinary procedure is to construct a machinery to
control employees behavior and performance if they fail to reach the
disciplinary standard.
Criteria for disciplinary procedure:
1. This procedure must be written and formal.
2. Specify the category of employees effected by the procedure.
3. Specify the disciplinary actions impose to employees if they are proven
committing with misconduct.
4. Specify the level of management that is authorized to implement the
disciplinary actions.
5. Give a chance to employee to file his complaint.
6. Disciplinary actions have to be taken after conducting a proper
domestic inquiry.
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7. Give a right to employee to make an appeal.
Disciplinary Actions
The Industrial Court has recognized the right of the employer to discipline a unmanageable
or disorder employees. In Goodyear Malaysia Berhad Vs National Union of Employees in
Companies Manufacturing Rubber Products (Award 63 of 1986) the Court stated that we
are fully aware that discipline in industry is an absolute necessity for efficiency. If every
worker were to do what he or she wanted the productive process would never be carried
out effectively.The Court therefore realizes that the right that the right of the
employer to discipline is an indispensable prerequisite to the operation of a successful
business.
Section 14(1) Employment Act allowing employer, after proper due inquiry, for the
purpose of misconduct, either a) dismiss without notice, b) downgrade or c) impose
any lesser punishment as he deems just and fit. If suspensions of work without
wages is imposed to the worker it will not exceed a period of two weeks.
In Central Kedah Plywood Factory Sdn. Bhd. Vs Timber Employee Union (Award
115 of 1988) it noted that the company might after due inquiry, take any of the
following actions against the employee for misconduct, inefficiency or indiscipline
a) verbal warning b) written warning c) suspension without pay (up to one week) d)
downgrading e) dismissal without notice (for misconduct)
Section 15 (2) Employment Act An employee shall be deemed to have broken his contract of
service with the employer if he has been continuously absent from work for more than two
consecutive working days without prior leave from his employer, unless he has a reasonable
excuse for such absence and has informed or attempted to inform his employer of such excuse
prior to or at the earliest opportunity
during such absence.
Section 59 (1) IRA Subject to subsection 5(2), it shall be an offence to dismiss a workman or
injure or threaten to injure him in his employment or alter or threaten to alter his position to his
prejudice, by reason of the circumstances that the workman
(f) has absented himself from work without leave for the purpose of carrying out his duties or
exercising his rights as an officer of a trade union where he applied for leave in accordance with
section 6 before he absented himself and leave was unreasonably deferred or withheld; or
(g) being a member of a panel appointed under section 21 has absented himself from work for
the purpose of performing his functions and duties as a member of the Court and has notified
the employer before he absented himself.
Section 59 (2) IRA stated that an employer who contravenes any of the provisions of subsection
(1) shall be guilty of an offence and shall be liable, on conviction, to imprisonment for a term not
exceeding one year or to a fine not exceeding two thousand ringgit or to both
2. Warning letter
This disciplinary action was taken when the employee repeating
the same misconduct after formal verbal warning was taken upon
him. In warning letter, an employee usually was asked to give
reasons why disciplinary action cannot been taken upon him.
3. Suspension
The suspension due to misconduct is different from suspension due to
domestic inquiry. In suspension due to misconduct, the employee will not
received his salary/pay during the suspension period. On the other hand,
employee will receive half of his salary during suspension due to domestic
inquiry and if he is found not guilty, he will receive the remaining salary.
A suspension due to misconduct can only being implemented if the
employment contract allowing employee to be suspended. The time period
for suspension is not exceeding 2 weeks (Section 14(2) Employment Act
1955).
4. Transfer and downgrade (demotion)
These actions are the alternative for dismissal and only can be impose if
the employment contract allowing employer to transfer or demote employee
due to misconduct.
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Dismissal
In Rasa Sayang Hotel Vs National Union of Hotel, Bar & Restaurant
Workers (Award 82 of 1982) the Court mentioned that the court agrees with
the union that there is no denying the right of the employer to punish, but
there is also the right of the employee not to be punished if there had been
no offence.
Therefore, in Stamford Executive Centre Vs Dharsini Ganesan (Award 263
of 1985) indicated that the employer must produce convincing evidence that
the workmen committed with misconduct which he has been dismissed. The
burden of proof lies on the employer. He must prove the workman guilty and
it is not the workman who must proof himself not guilty.
In MSAS Cargo International Sdn. Bhd. Vs Rajaratnam a/l Rajan (Award 461
of 1994) the burden of proof placed on the employer is to prove beyond
reasonable doubt the said misconduct.
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Domestic Inquiry
Section 14(1) of the Employment Act 1955 has urged that any disciplinary
action (dismissal, demotion, suspension or any lesser action) must be taken
after proper inquiry.
In Ibrahim Hassan Vs Diamond Cutting Sdn. Bhd (Award 79 of 1980) the
court has decided that the requirement of a domestic inquiry has acquired
great significant in our industrial law and has become a statutory
requirement prior to the inflicting of punishment for misconduct as laid down
in Section 14 of the Employment Act.
In Low Yat & Sons Realty Sdn. Bhd. Vs Yusof Bin Ahmad (Award 60 of
1989) the claimant argued that the dismissal was without just cause or
excuse because there was no domestic inquiry being implemented.
Unfortunately, Industrial Relations and Employment Acts have silent
according the procedure of domestic inquiry.
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If any workman considers that he was dismissal without just cause or excuse, he shall
represent in writing to the Director General at the nearest DGs office (S 20(1)) within 60
days from the dismissal (S20(1A).
Upon receiving the representation, the DG has to take necessary steps to settle the
representation or refer to the Minister if he is satisfied that the representation is no likelihood
being settle at his level (S 20(2)). The DG may use his power to direct either party to furnish
him with information (S 20(8)(a). He may call upon any person engaged directly or indirectly
with the dismissal to attend a conference presided over by the DG or any person appointed
by him. Upon receiving reference from the DG, the minister, if he thinks fit refer the
representation to the Court (S 20(3)).
In any proceedings under S20(2), the employer may represented by his authorized
employee or trade union if he is the member of the trade union (S 20(6)(a)). In addition, the
employee may represent himself or if he is a member of a trade union, he may represented
by the trade union (S 20(6)(b)). An employee and employer shall not be represented by an
advocate, advisor, consultant or any other person whatsoever.
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Employee may claim for indemnity (compensation) for wrongful dismissal under Section
69(3) Employment Act 1955.
The Director General may inquire into and confirm or set aside any decision made by
employer under Section 14(1) and the Director General may make such consequential
orders as may be necessary to give effect to his decision.
If the decision of employer under S14(1) is set aside, the consequential order of the Director
General against such employer shall be confined to payment of indemnity in lieu of notice
and other payment that entitled by the employee as if no misconduct was committed by the
employee. According to Section 12(2), the length of notice for such terms and conditions of
employment shall not less than a) four weeks if the employee is employed less than two
years b) six weeks for the employee that employed for two years or more but less than five
years c) eight weeks if the employee is employed more than five years and more.
The DG shall not aside any decision made by employer under S14(1) if the decision has not
resulted any loss in wages or any payment payable to the employee under his contract of
service.
The DG will not exercise his power under this section unless the employee reported to him
within 60 days from the date of decision under S14(1) either orally or writing.
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Constructive Dismissal
Definition indirect to dismissal, where, for example, the employer unilaterally
changes the terms of the relationship so that an employee has no choice but to
resign. This happens when an employee terminates the contract (resigns) without
notice by reason of the employers conduct which he considers so unreasonable
that he could not be expected to stay.
In the case of a constructive dismissal, although the employee has resigned, he
has the same right to make representation under S20 Industrial Relations Act 1967
as one who has been unfairly dismissed by his employer. In Western Excavation
(EEC) Ltd Vs Sharp (1978)IRLR 27 Lord Denning MR stated that an employee is
entitled to treat himself as constructively dismissed if the employer is guilty of
conduct which is a significant breach going to the root of the contract of
employment or which shows that the employer no longer intends to be bound by
one or more of the essential terms of the contract. (Reference case: Industrial
Court Award 282 of 2000)
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2.
3.
4.
5.
The employee must make up his mind (leave the company) soon after
the conduct of which he complaints. If he continues for any length of
time without leaving, he will lose his right to treat himself as discharged
and will be regarded as agreeing with the contract.
The complaint must first referred to grievance procedure.
There must be a breach of contract by the employer . This may be
either an actual breach or an anticipatory breach.
The breach must be sufficiently important to justify the employee
resigning or else it must be the last in a series of incidents which justify
his leaving.
The employer must leave in response to the breach and not for some
other unconnected reason.
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Burden of Proof
If in dismissal, the burden of proof is fall to employer but in claiming
constructive dismissal, the burden of proof is fall on the employee.
He should proof the following matters:
1. The company is guilty of conduct which is a significant breach of the
contract of employment.
2. The company is guilty of conduct which is a significant breach which shows
that the company no longer intends to be bound by one or more of the
essential terms of the contract.
3. The conduct must be sufficiently serious to entitle the claimant to leave at
once.
4. The claimant left at an appropriate time soon after the breach complained
of.
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