Case About Employee Relations Issues

This paper is based on the employee relations issues found in the case of Abdul who is employed at BuySell Supermarket. From the case study we can deduce three main employee relation issues. Employee relation can be described as the relation between the employer and the employee. The issues noticed include:

Employee misconduct

Constructive dismissal

Lack of procedures for grievance

The issues will be discussed in detail in the following pages. In this regard relevant cases will be referred in order to prove the validity.

Employee misconduct

From the case we can understand that Abdul was performing his duties to the expectation of the employer until he was faced with some personal problems. This is evident from the fact that Abdul was given promotion as a senior cashier. Abdul’s work behaviour changed considerably after he separated from his wife. This led him to take frequent leave on medical and on personal grounds. He attended work with scruffy looking clothes and often argues with the customers. The grooming and the frequent arguments with the customers can be regarded as acts of misconduct from Abdul. Misconduct means an improper behaviour, act or conduct which is a breach or violation of the discipline or regulations of the company. The Industrial Court has defined misconduct as:

An act or conduct that is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master. (Tractors Malaysia Bhd v Wong Kam Yoon, Award No 27/1972)

Any misconduct on the part of an employee inconsistent with the faithful discharge of the duties of an employee towards his employer, unless it be of a trifling nature (Liew Ken & Ors and Thung Pau Bherhad, Award No 37/1974).

The first definition clearly states that if the act or conduct damages the reputation of the employer it is misconduct. As a senior cashier Abdul would be working in the forefront of the shop and his interaction with the customers and how he deals with them will affect the reputation of the company. Therefore there is no doubt that Abdul’s action is misconduct. If unaddressed, this behaviour of Abdul would adversely affect the business of BuySell Supermarket. Therefore it is necessary to take a proper disciplinary action. In the case the management issued Abdul with a warning letter to correct his behaviour. It can be argued that the action by the management is too harsh as one may regard the behaviour of Abdul as a minor offence. There are varying degrees of misconduct, ranging from minor misconduct to serious (gross) misconduct. In addition, the same misconduct may be viewed differently depending on the nature of the job. For instance, sleeping while on duty would be gross misconduct for a security guard but if a clerk in the same company were to be caught sleeping while at work, it would unlikely be viewed as a gross misconduct. Similarly, smoking in a site office would not be as serious a misconduct as smoking in a warehouse where highly combustible materials are stored. Misconduct covers acts of the employee which occur during performance of the employment contract, and which are alleged to have an adverse effect on the contract. Such acts may be classified in accordance with their gravity or seriousness, that is acts of trivial nature (minor misconduct), serious matters (serious misconduct) and extremely serious matters (gross misconduct). It is important to have such a classification in order to decide the methods to be adopted to solve the problem in question. For acts of minor misconduct, these can easily dealt with by a warning (informal, followed if needed by formal warning). However, it is up to the employer to decide which minor and gross misconduct is. Now the question is whether the management’s action against Abdul can be justified as fair and is it in par with the degree of misconduct? In order to have a justified action the management should have held a domestic inquiry. The labour legislation of Malaysia that particularly deals with the word “inquiry" is found in Section 14 (1) and (2) of the Employment Act 1955, which states

“(1) An employer may, on the grounds of misconduct inconsistent with the fulfillment of the express or implied conditions of his service, after due inquiry:

Dismiss without notice the employee; or

Downgrade the employee; or

Impose any other lesser punishment as he deems and fit."

The first important point to note is that an inquiry is not a compulsory exercise, as implied by the word “may". Although an inquiry is not mandatory, there are good reasons why an employer should hold a domestic inquiry before punishing an employee for misconduct. Holding of an inquiry will show that an employer is in search of the truth and is trying to be fair before taking disciplinary action. In this case Abdul was given a warning letter, stating that if his behaviour did not change, he risks termination from the job. It is evident from the case that the relationship between the Supervisor and Abdul was not good as he did not allow Abdul to meet the Human Resource Manager. However, as a responsible employer, the Human Resource Manager should have considered the past records of Abdul, his period of employment, and the severity of the behaviour before the action was taken. This would have avoided the claim from Abdul for unfair treatment against him.

Lack of disciplinary procedure

When we study the case of Abdul and the incidents, it is clear that BuySell did not have a proper disciplinary and grievance procedures set up in the organisation. If there was a well written and communicated disciplinary procedure in place, it is unlikely that an employee could claim for unfair treatment. A disciplinary procedure is a mechanism for dealing with disciplinary matters involving workers in the place of employment. It is a written step-by-step process which a company commits itself to follow in every case where an employee has to be warned, reprimanded, or dismissed. It should be borne in mind that the idea of disciplinary action against an employee is not to persecute the employee but to keep the office or the business, or even the industry concerned, running smoothly and efficiently. By law, there are certain minimum standards which must be included in a disciplinary procedure, known as “statutory minimum procedures". If the employer dismisses an employee without adhering to these standards, the said employee could make a claim of unfair dismissal. A typical disciplinary procedure includes the following stages:

A formal, oral warning in the case of minor offence

A written warning for subsequent minor offences or a more serious offence

A final written warning for further misconduct. The warning should make it clear that dismissal may follow failure to comply

Dismissal with appropriate notice will follow if there is insufficient improvement

The above mentioned steps are typically used for attendance or general work performance problems. However, for serious offences such as theft, fighting, drug or alcohol use or sale, some of the earlier, less stringent measures can be skipped. Misconduct or poor behaviour can also be categorised based on the increasing seriousness of the misbehaviour and the following are some of the examples of categorisation.

Category 1

The type of poor work behaviours listed below is suitable immediately following discovery of the problem for counseling. If no improvement is noted, then more severe disciplinary actions should be taken which eventually lead to termination. The types of conduct are as follows:

Absenteeism

Repeated tardiness

Malingering

Neglect of duty

Non-adherence to policies such as no-smoking

Damaging equipment

Category 2

The following types of offences are more serious than those in Category 1:

Claiming for time worked or overtime payments when the employee was absent (fraud)

Stealing company resources, including money, resources or intellectual property

Giving false information to company officers

Leaving the workplace without permission

Refusal to duty

Counselling is not appropriate for these offences. The employer should issue a final disciplinary warning for the more serious offences and a first warning for less serious situations or for an employee with a good record prior to the offence.

Category 3

The offences in this category may warrant instant termination of the employment contract:

Setting up business in competition with employer

Divulging trade secrets without authorisation

Forging medical certificates and false medical claims

Wilful misconduct

Assaulting another employee or supervisor

Wilful disobedience to a lawful and reasonable instruction

The above disciplinary procedure clearly shows what type of action would be taken in a particular situation. By just having a disciplinary procedure is not enough. The Human Resource Department should communicate the procedure to all employees such that employees are aware of the consequences for misconduct. It is seen that in a proper disciplinary procedure the first step for a minor offence is counselling. In the Abdul’s case he would have been given counselling for the first offence he committed. As we can understand that Abdul was a good employee before he was faced with a personal problem. In the counselling session the Human Resource Manager could have helped Abdul dealing with his personal problems as well as the work behaviour. Taking improper action have jeopardised the relation between Abdul and the BuySell Supermarket. Hence, the importance of a proper disciplinary procedure is evident.

Lack of a Grievance Procedure

Unresolved grievances, real or otherwise, are often the reason why employers

Constructive dismissal

The work Abdul had to do at the stores was completely different from the work he did as a senior cashier. From the point of view of the employment act, Abdul has the right to resign and take the matter to the court. The transfer could be considered a constructive dismissal if Abdul should decide not to accept the order of transfer from the management. In the case of