“Effective leadership is putting first things first. Effective management is discipline, carrying it out” – Stephen Covey.
Employee misconduct is simply defined as a form of improper behaviour or an intentional wrongdoing or a deliberate violation of a rule or standard of behaviour.
More often than not, employers are at a losing end when it comes to handling employee misconduct. Say for instance an employee is a habitual absentee; screaming on top of your lungs and asking them to leave will only make you lose the battle. Not only will you lose an employee (who possibly could be disciplined and trained to be better), you are also exposed to legal risks if the dismissal happens without taking necessary steps to ensure the execution of a fair procedural process.
Employers have to be tactful in addressing employee misconduct. Emotions must not get in the way. If the approach is wrong, matters can worsen and cause serious problems for the company. It may then lead to poor performance. Having said that, it is still important for employers to act promptly. Condoning to actions will almost make it impossible to act on it eventually. Many HR practitioners in Malaysia are guilty of the condoning act.
Managing an employee for misconduct requires a very different process than what is required to manage poor performance. The disciplinary measures must be in proportion to the misconduct, and the employee’s employment history must be taken into consideration. The disciplinary measures also require sensitivity as allegations of a serious incident at work such as fraud, theft or workplace violence may require you to suspend the employee while the misconduct allegations are investigated.
Procedural fairness is a key element in this matter. Employers must consider all circumstances, not just the alleged misconduct. Some of the circumstances to consider are the extent of the allegation, employee’s disciplinary history, and the nature of his or her position and the length of service. There is no absolute rule of thumb in the procedures; it is somewhat discretionary.
Upon completion of relevant investigation and discussion related to the misconduct,you must then decide and document what disciplinary action (if any) is appropriate in the circumstances. Decision should be made whether the person is really guilty. If it warrants disciplinary action, the employer must look into the gravity of the misconduct. Based on that, employer should decide the type of punishment suitable for the misconduct. All these decisions must be documented and relayed to the employee before any final decision is made about whether the correct action to take is dismissal.
Dismissing an employee for misconduct
Some workplace conduct DO NOT fall under the definition of misconduct, and they include:
Incompetency
Wilful breach of contract
A difference in work habits
An unintentional error
A temporary lapse of good judgement
A single instance (except in extreme cases such as intentional burning)
The burden is placed on the employer to prove two things:
Deliberate disregard of the employer interests, and
At least one prior warning for misconduct was issued
Warnings are important. At least one warning must usually be issued for the specific behaviour. A warning for a different allegation does not qualify. If an employee receives a warning for lateness, but then is discharged for neglecting to follow safety standards, the misconduct allegation would probably not be valid. The initial warning for lateness is not the same as the actual reason for discharge (safety violations).
Keeping records of warning letters issued out to employees would usually prevail in supporting the discharge for misconduct. It is essential for evidence to be recorded; complete and accurate. Ideally, a warning letter should:
Be in writing, dated and signed by both the employer and employee;
Clearly list the unacceptable behaviour(s);
Cite specific recommendations on ways to improve, and specific standards to be achieved
Failure to substantiate an allegation of misconduct with evidence will result in a determination in favour of the dismissed employee. The employer must participate in the initial fact-finding process, as well as any appeals or evidence. Always have document trails in every single matter, even if it makes you look like a bad cop. The documents will come handy as a shield if and when you’re charged for wrongful dismissal.
This article is courtesy of i-HR Net Consulting Sdn Bhd, a strategic HR partner for WomenBizSENSE. For questions or other HR issues, contact Mr Rob Waller at 01825 88168.