Repeat of the Similar Misconduct / Nature of Misconduct

Recorded through Industrial Court proceeding in the case of Kamala Loshanee a/p Ambalavanar v Jaffnese Co-Operative Society [1998] 7 MLJ 61, the Court held that past misconducts of a similar nature may justify dismissal. It states as follows;

"In my judgment, past misconduct is a relevant factor to be taken into consideration. If there is a repetition of similar acts of misconduct, the cumulative effect may justify dismissal.....  The message to the applicant was very clear indeed that the warning was a final one. Unfortunately, the applicant did not heed it. The previous warnings could not be considered as 'spent' even though the final warning was issued some 12 years prior to the incident. Since the final warning was breached by the applicant's misconduct, the respondent society could not be expected to overlook the past bad record of the applicant and to confine itself to the particular incident of this case".

As such, the idea of enforcing disciplinary action through graduate punishment application is fairly encouraged by the court in the case of Balan NG Krishnan v. Indah Water Operations Sdn Bhd [2001] 3 ILR:

“…. The court is therefore uncertain as to whether the Company has its own scheme of graduated punishments which can be meted out appropriately in instances where disciplinary action is taken against its employees. If it does not have such a scheme then perhaps it is timely for the Company to consider introducing one. …. In conclusion, while the claimant’s misconduct warrants certain disciplinary action to be taken against him, it does not constitute just cause or excuse to warrant the Company’s action of dismissing him”.

By applying graduate punishment, the disciplinary action meted out will gradually increase i.e. Reminder > Caution > Warning > Serious Warning. Nonetheless, the application of graduated punishment depends on the gravity and severity of the misconduct where there is always a thin line separating minor and major misconduct which is a never ending discussion. Any other disciplinary action/punishment other than the ones mentioned i.e. suspension without pay, stoppage of increment and/or bonus, demotion etc is applicable upon a Domestic Inquiry session. 

Under Performing Employees / Probationer

Briefly, managing a probationer and non-performer should be as the following guideline 

1. The probationer must be informed of his weaknesses;
2. He must be warned for underperforming; and
3. He must be given reasonable period for him to improve.

Therefore, upon completion of the PMS of mid-year review, the employee must be warned and informed of his weaknesses.

Failure of doing so will indicate and portrait that the employer is condoning his underperformance by not doing anything about it.

The most important thing of all, is the appraisal rating score MUST reflect what actually is happening or the actual performance of the employee. 

The quoted case of James v. Waltham [1973] IRLR 202 in dealing with non-performer, it was held as follows:

“If an employee is not measuring up to the job, it may be because he is not exercising himself sufficiently or it may be because he really lacks the capacity to do so. An employer should be very slow to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, (1) first telling the employee of the respects in which he is failing to do his job adequately, (2) warning him of the possibility or likelihood of dismissal on this ground, and (3) giving him an opportunity of improving his performance. But those employed in senior management may by the nature of their jobs be fully aware of what is required of them and fully capable of judging for themselves whether they are achieving that requirement. In such circumstances, the need for warning and an opportunity for improvement is much less apparent. Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and opportunity for improvement are of no benefit to the employee and may constitute an unfair burden on the business.”

In another case of Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11. In the said case, the learned Chairman has stated:

“It would appear ... that a written warning by the company is essential before it can dismiss the claimant on the ground of poor performance. In the instant case it is not disputed that the claimant was never given a written warning but the company alleges he was given oral warnings which were adequate. That being so, the burden lies on the company to adduce convincing and compelling evidence to prove this.”

Any known act of misconduct, immediate action must be taken against the employee upon knowledge of the misconduct even if the misconduct had happened months (or even years) before it surfaced. Failure to take disciplinary action (or any other action) against the employee shall be deemed as an act of condonation the Company choose not to punish or pursue the alleged misconduct. It is ALWAYS the burden of the Company to prove that the employee has indeed carry out the misconduct and NOT the employee to prove that he/she is guilty of the charge(s).

As the learned Chairman stated in Stamford Executive Center v. Puan Dharsini Ganesan (1986) “The employer must prove the employee guilty and it is not the employee who must prove himself not guilty”.

Master-Servant Relationship

Any known act of misconduct, immediate action must be taken against the employee upon knowledge of the misconduct even if the misconduct had happened months (or even years) before it surfaced. Failure to take disciplinary action (or any other action) against the employee shall be deemed as an act of condonation the Company choose not to punish or pursue the alleged misconduct. It is ALWAYS the burden of the Company to prove that the employee has indeed carry out the misconduct and NOT the employee to prove that he/she is guilty of the charge(s).

As the learned Chairman stated in Stamford Executive Center v. Puan Dharsini Ganesan (1986) “The employer must prove the employee guilty and it is not the employee who must prove himself not guilty”. 

The quoted case of James v. Waltham [1973] IRLR 202 in dealing with non-performer, it was held as follows:

“If an employee is not measuring up to the job, it may be because he is not exercising himself sufficiently or it may be because he really lacks the capacity to do so. An employer should be very slow to dismiss upon the ground that the employee is incapable of performing the work which he is employed to do, (1) first telling the employee of the respects in which he is failing to do his job adequately, (2) warning him of the possibility or likelihood of dismissal on this ground, and (3) giving him an opportunity of improving his performance. But those employed in senior management may by the nature of their jobs be fully aware of what is required of them and fully capable of judging for themselves whether they are achieving that requirement. In such circumstances, the need for warning and an opportunity for improvement is much less apparent. Again, cases can arise in which the inadequacy of performance is so extreme that there must be an irredeemable incapability. In such circumstances, exceptional though they no doubt are, a warning and opportunity for improvement are of no benefit to the employee and may constitute an unfair burden on the business.”

In another case of Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11. In the said case, the learned Chairman has stated:

“It would appear ... that a written warning by the company is essential before it can dismiss the claimant on the ground of poor performance. In the instant case it is not disputed that the claimant was never given a written warning but the company alleges he was given oral warnings which were adequate. That being so, the burden lies on the company to adduce convincing and compelling evidence to prove this.”