Major Teoh’s Blog

February 21, 2007

More on Misconduct

Filed under: Management — Major (Rtd) Teoh @ 2:39 pm

1. What is a misconduct?
A misconduct is the commission and/or the non-commission of an act which is incosistent with the fulfilment of the express or implied terms of the conditions of service.

2. What are the types of misconduct?
There are two types of misconduct, vis-a vis, minor and major misconduct. A minor misconduct is one that does not attract dismissal as a punishment whereas a major misconduct does. Whatever it is, before a punishment is dished out or dispensed, even a simple warning, an inquiry must be held,

3. What constitutes an inquiry?
An inquiry can either be formal or informal depending on the seriousness of the misconduct. The elements of natural justice must be incorporated into an inquiry, the absence of any one of the limbs of natural justice, such as: (i) No one can be a judge in his own cause (‘Nemo debet essa judex in propria cause’), (ii) Hear the other side (‘Audi Alteram Partem’), will render the inquiry invalid.

In an hypothethical case in which an errant employee comes late for work for the first time, by asking him, “Why are you late?” would constitute an inquiry. As this is a minor misconduct and dismissal is not at the back of your mind, therefore a due inquiry such as this suffice.

But if it is a serious case such as theft or smuggling of drugs into the work place, a formal inquiry with a panel duly appointed and the proceedings properly documented should be contemplated because dismissal will definitely be at the back of your mind when the errant employee is found quilty as charged.

For the above reasons that is why I recommended that HOD should handle minor offences and HR handle major offences.

4. The case for the HOD
When a minor misconduct is reported to the HOD, the HOD should investigate and establish whether there is a prima facie case or not? If there is, he then summons the errant employee to explain his actions or inactions.

Depending on the errant employee’s explanation, the HOD could either throw the whole report out, if the HOD accepts his explanation or warns him if his reasons or explanations are not accepted. In a unionised environment, the union could insist that the HOD withdraws the warning letter if it is found to be mala fide, and/or issued without just cause and reason.

5. When does a minor misconduct becomes a major misconduct?
A minor misconduct can become a major misconduct if it becomes habitual and without any abatement.

6. Can a major misconduct be inquired into in a very informal way?
If the offence is serious enough to attract dismissal as a punishment, it is advisable not to. A proper vebatim documentation of the whole proceedings, from beginning to end, is recommended. All these records should be made available when your actions are challenged in the open courts.

7. What are the types of punishment available by law?
Section 14 (1) confers the right of an employer, after due inquiry to do either one of the following:

(a) dismiss without notice the employee;
(b) downgrade the employee; or
(c) impose any other lesser punishment as he deems just and fit.

Sub-section (a) and (b) above, are quite clear and definite. In sub-section (c), it could be implied that the employer is free to:

(a) impose fines
(b) transfer
(c) with-hold increment and make stoppages of pay;
(d) depriviation of bonus, full or partial.

In the past, the Industrial Courts will not vehemently oppose to the employer’s decision to any of the above but will usually view it as “too excessive” and reduce the quantum. What is “just and fit” for one party will not be “just and fit” for another. It is debatable.

Just sharing.

Regards,

Major (Rtd) Teoh

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