Employee relation issues faced by Abdul

INTRODUCTION

This report will look into the employee relation issues faced by the employee (Abdul), in the case-study. Most of the issues highlighted in the case falls under employee discipline and grievance. However there are some issues which extend to the area of employee discipline like re-assigning Abdul to store duties.

In this report, the author would like to examine and evaluate three main issues mentioned in the case comprehensively. The three major areas are:

Disciplinary issues and the responding actions taken by the management

Abdul’s complaints and evaluation of grievance handling mechanism in the organisation

Re-assigning of Abdul’s job – whether this action is lawful and ethical

Each of these areas will be evaluated comprehensively based on legal and ethical grounds. Furthermore, the possible implications of management actions on employee performance and other related areas and author’s opinion and recommendation for the management are discussed at the end of the report.

Disciplinary Issues

It’s a responsibility and a prerogative right of the employer to discipline employees whenever they do not adhere to the rules and codes of conduct set in a working environment. According to Section 14 of Employment Act 1955, Employer has the right to dismiss, downgrade, suspend or impose any other punishment as he deems just and fit. Most employers believe a certain level of discipline is important for smooth functioning of business activities, maintaining a high performance and for creating a working environment which supports team work, trust and cooperation between the employees. Each and every company has a different set of rules and disciplinary procedures that best suit their needs. Hence, disciplinary actions and procedures are very subjective area where comparisons between other organisations are difficult.

In case of Abdul, the reason for the drastic changes in his behavior initiated due to personal problems. It’s a common situation where work life is affected due to personal problems. Generally, employers do not look into what personal problems have caused the employee to drop the performance or misconduct when taking disciplinary action as in Abdul’s case. Employees are expected to draw a distinction between their job and personal life. When the Employee is present at the place of work he is expected to render his maximum potential service despite the personal problems or anything else that has happened outside the working environment – as some employers say to their employees “don’t bring your personal problems to office". However there are organisations and employers who believe otherwise in ‘human relations school of management’.

Attendance and Punctuality Standards and Dress Code are among the most common standards found in work places. As mentioned earlier, significance of these standards or seriousness of non-compliance to such rules differ from company to company. For example; in organisations where employees deal with public and businesses where corporate image is deemed important for the success of the company like a supermarket (BuySell) these standards may be considered important and non-adherence to such rules may be faced with more serious consequences than elsewhere. In the case of Atkin v Enfield Hospital Management Committee (1975), a dismissal regarding, failure to wear appropriate clothing by an employee was held by the court as a fair dismissal. Based on the seriousness and interpretation of the misconduct by the employer, misconduct can be classified into two categories; minor and major misconduct.

Arriving late for work and not adhering to dress code are normally considered minor misconduct. However repeating such actions may render severe disciplinary action. In case of Abdul, the company has the right to take necessary disciplinary action against him for these minor misconducts starting from day one as per the company rules. It is inconclusive from the case whether the supermarket took necessary action against this at the earlier stages.

The case highlights that Abdul utilized medical leave and emergency leave more frequently after the incident. Taking medical and emergency leave is a right of employee provided in Employment Act 1955, to be used on genuine situations of ill health. On the other hand, taking frequent leaves will face disruptions and losses on employers end. Moreover if the employer believes that employee is abusing the leave, the situation may lead to an adverse relationship between the parties. In such situations, it’s common from employers to discriminate in allocating benefits even though unethical.

Most serious misconduct of Abdul reported in the case was arguing with the customers leading to customer complaints. In a supermarket where customer satisfaction and delivering a quality service for the customers are considered utmost important for the success of the business, such conduct by an employee may tarnish the image of the company, giving way for customer dissatisfaction and poor sales in the future. “Tarnishing image of the employer can be regarded as misconduct and therefore disciplinary action can be taken against the employee" Aminuddin (2007). Hence, BuySell Supermarket should not entertain such behaviors from their employees.

It is highly expected from the management to take severe disciplinary actions against employees who violate such ethics of the company. In that regard, Mr. Abdul was given a written warning for the misconduct.

Taking disciplinary action against employees is a sensitive area of human resource management where such cases should be dealt carefully to achieve the objective of the course of action. “It is essential that disciplinary action be carried out in a proper manner; not only due to the legal consequences which may arise but also to optimize and maintain good employer-employee relations, performance and morale of employees" Aminuddin 2007. For this reason, most employers formulate necessary disciplinary & grievance procedures and communicate them to the employers in advance. Such procedures should be progressive and should seek to correct the employee rather than punishing them.

In addition to that, any disciplinary action or punishment must be appropriate to the seriousness of the misconduct and should take into account any mitigating factors such as the length of service, prior record of employee and whether there were any personal problems that explains aberrant behavior or any other provocation which leads to commit misconduct.

In the case, it can be said that the supermarket acted on a progressive manner by giving Abdul a written warning and informing him that he will be dismissed if he do not change his behavior. However, in a good progressive disciplinary system, there are several steps the management could consider to use before a written warning. And also these steps could be more appropriate and effective in correcting the employee. Such a system starts with counseling the employee following oral warnings before giving a written warning.

Mr. Abdul has been a great asset to the company for more than 5 years and his good behavior and discipline was recognized by the management itself. Furthermore, the management was well aware about the reason for his aberrant behavior; the personal problems he was going through. Author believes that these mitigating factors should be considered before deciding to reprimand Abdul. In this regard, the supervisor should have talked to Abdul in person just after the first instances of misconduct or signs of drastic change in behavior. Counseling should be provided to him if the supermarket has such arrangements or through their personal department. If Abdul continues his misbehavior he should then be given an oral warning. These steps should be aimed at discussing and explaining the problem to the employee and solving the problem by getting employees commitment not to repeat such misconducts.

Abdul’s complaints and the grievance handling mechanism

Mr. Abdul raised his complaints twice for the actions taken by the management, to which he got a deaf ear from his supervisor as well as HR manager. Firstly, Abdul protested to the warning letter given to him and requested for a meeting with the human resource manager. Secondly, he complained about re-assigning him to store. But neither his supervisor nor the HR manager entertained any of his issues. This situation strongly suggests that the supermarket doesn’t have a good procedure to handle grievance.

Formal grievance procedures are the most common tool to resolve conflicts arising between the workman and management during the life of agreement. More to that, such a procedure provides a communication channel through which employees can express their problems and perceptions (Michael. R and Christina H, 2010)

According to Linda (1996), even though warning is a lesser punishment compared to demotion and dismissal, the employer should punish an employee after giving the employee an opportunity to explain the act or omission alleged against him and after considering his explanation. Similarly, Section 14 of Employment Act 1955, also says employers may take disciplinary action against their employees after a ‘due inquiry’. Therefore, it is always advisable and pertinent for the employer to hold a domestic enquiry as it serves natural justice and just cause for his disciplinary actions against the employee. In a domestic enquiry employee will be given reasonable opportunity of being heard in his own defense.

Having said that, it’s also arguable that in the given situation, the misconduct is fairly clear-cut and hence, it would be a waste of resources to entertain the issues and protests by Abdul as the management believes that the grievance contains no merit. In most cases the complaints raised by employees for the disciplinary actions taken against them, do not contain any merit. In a good disciplinary system, the actions of the management are more focused on correcting the employees rather than punishing them. Therefore it is vital for the management to explain and make the employee understand the consequences of his actions and the grounds on which disciplinary actions are taken against the employee. This also includes communicating the set policies and procedures to all the employees.

Re-assigning Abdul to Storeroom duties

Since Mr. Abdul continued to create problems, as a measure of damage control, Siti, supervisor of Abdul re-assigned him to storeroom duties. On a management perspective, such an action is necessary considering the behavior of Abdul. But here the question is whether the management can re-assign him from a senior cashier position to a storeroom clerk. Is it lawful and ethically acceptable?

A senior cashier will have relatively high job responsibilities than a storeroom clerk. The new responsibilities and duties of Abdul as a storeroom clerk are also quite different from his previous position. A sudden change in the area of work may lead the employee to perform poorly. Such a change will also have detrimental effects on employee morale and motivation.

Transfer of employees and demotions are one of the areas of industrial relations where there has been minimal judicial interference. It is because of the common understanding of the parties involved in an employment contract that the management will have such powers. According to Hew Soon Kiong (2002), the right to transfer an employee is a prerogative of the management and the consent of the employee is not required in exercise of such prerogative provided that the terms and conditions of his employment are not adversely affected. However such actions should be done in good faith.

It is also important note here that, the reassigning of Abdul to stores was not a normal transfer without a justifiable reason. He was transferred as the consequence of his misconduct as a measure of damage control. As mentioned earlier, the management also has the right to transfer or demote their employees as a disciplinary action. In cases like WAN MAN AB LATIFF v. TAHAN INSURANCE MALAYSIA BHD [2008] 1 ILR 172 and SOUTHERN BANK BERHAD v. ZAID AHMAD KHAN RAFI AHMAD KHAN [1998] 3 ILR 333, the court upheld the disciplinary actions taken by the management regarding transfers or demotion. Furthermore, section 14 of employment gives the employer the right to carry out any such action within the legal boundaries.

The controversial area in the case is whether such a reassigning of job, which leads to a lower responsibilities, with its consequent humiliation and frustration from fellow cashiers can be considered as grounds for claiming a constructive dismissal? In the case of, Wong Chee Hong v. Cathey Organisation (M) Sdn. Bhd. [1988], Salleh Abbas L.P had this to say:

In our judgment the transfer which relegated the applicant to a position of lesser responsibilities, albeit on the same terms and conditions, but which the appellant refused to accept, is a dismissal

Aminuddin (2007) defined constructive dismissal as forcing an employee to resign from his job as a result of the employer breaching the employment contract. The employee treats himself as having been dismissed.

In a case of constructive dismissal, the court applies “contract test" in deciding the case. The following are the principles of contract test;

The nature of employer’s breach of contract must be such as entitles the employee to terminate the contract without notice.

He must show that the employer’s breach was the reason why he left

He must not have terminated the contract before the breach of contract took place; and

He must not have waived his right to terminate the contract by delaying for an unreasonable period after breach.

In the case of Abdul, he would not be able to justify the first principle of contract test. Disciplinary action of the management cannot be considered as a breach of contract. In addition to that, the management has just cause and reason for reassigning of Abdul to stores. In the case of KAMALA RADHA KRISHNA NAIDU v. MALAYSIAN AIRLINE SYSTEMS BHD [2011] the judge reviewed and summarized the legal position of constructive dismissal following downgrading of an employee for misconduct as follows;

“Downgrading of a workman’s position after a finding of guilt against him cannot be the subject of the claim for constructive dismissal because; in such circumstances there is no question of the employer acting in breach of a fundamental term of contract"

Secondly, Abdul did not resign from work just after the management transferred him to stores but he stayed and continued to perform the job of storeroom clerk. Thus, this action of Abdul can be considered as he has waived the right to terminate the contract to claim constructive dismissal.

CONCLUSION

The author of this report believes that the management has acted lawfully against the employee in taking most of the disciplinary actions highlighted in the case-study. However, there are few things the management should be concerned and careful with, regarding the actions they have taken against the employee and such actions in the future. First of all, the absence of a proper disciplinary & grievance procedure in the workplace might lead the management to discriminate and treat unfairly when taking disciplinary actions. Therefore, proper procedures should be formulated and well communicated to the employees.

The author would also like to recommend the management to use a progressive disciplinary system where employees are given the chance to correct themselves before any severe punishment are being imposed.