Tuesday, May 31, 2016

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. 

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