Employee Relations - Disciplinary Issues

1.

When disciplinary action is applied by the employer?

Disciplinary action is applied by the employer under either of the following conditions:

  • When the employee disobeys rules set by the employer, or his/her behavior is unbecoming i.e. he/she performs a misconduct; and
  • When an employee does not perform to acceptable standards.
2.

What are the examples of acts that will be taken as misconducts?

Examples of acts that will be taken as misconducts are as follows:

  • Willful insubordination or disobedience to any lawful and reasonable order of a superior
  • Theft, fraud or dishonesty with respect to the employer's business or property
  • Habitual absence without leave
  • Habitual late attendance (three or more occasions within six months)
  • Drunkenness, taking illegal drugs, fighting, riotous or disorderly or indecent behavior
  • Bullying or harassing in any way, including sexual harassment, any co-worker, or person with whom the employee has business related contact
  • Sleeping during working hours
  • Negligence
  • Smoking in prohibited areas of the company
  • Failure to follow safety rules and regulations
  • Taking industrial action or inciting others to take industrial action against the provisions of the Industrial Relation Act or of any other law.
3.

What are examples of misconduct that may be grouped as major or minor?

Examples of misconduct that may be grouped as major or minor are as follows:

Major Misconduct Minor Misconduct
Consuming alcoholic drink at work, or illegal drugs Coming late for work
Fighting Use rude language
Refusing to work Wear inappropriate clothes
Theft Telling inappropriate jokes with sexual connotations
Committing fraud  

 

4.

What actions does a company might take, after due inquiry, against an employee for misconduct, inefficiency or indiscipline?

Actions that a company might take after due inquiry, against an employee for misconduct, inefficiency or indiscipline are as follows:

  • Verbal warning; or
  • Written warning; or
  • Suspension with half pay up to two weeks; or
  • Downgrading; or
  • Dismissal without notice of misconduct
5.

What the general guidelines for disciplinary action?

General guidelines for disciplinary action are as follows:

  • Should be given in private
  • Should be expected
  • Action taken should be consistent
  • Should be immediate
  • Should be progressive
6.

What are the progressive disciplinary action procedures?

The progressive disciplinary action procedures are:

  • Oral warning followed by counseling
  • Warning in writing for three occasions before the next stage. The warning letters shall contain detailed description of the misconduct and refer to oral warning and may include the purpose of the non-complied rule in brief. If the employee is a union member, it will be useful to dispatch the written warning to the union officer.
7.

What are features of a properly conducted investigation?

Features of a properly conducted investigation are:

  • Use of a neutral and skillful investigator
  • Investigator shall hold a higher or similar level organizational position as the accused employee
  • The investigation is conducted quickly, and yet to be thorough and with care
  • No pressure shall be imposed on the parties involved, including witnesses and the accused employee during interviews
  • Interviews statement by relevant parties shall be recorded in writing, signed by the person giving each statement, and stored for later retrieval
  • Apply legal means only to gather evidence or obtain information
  • Apply legal means only to gather evidence or obtain information
  • Evaluation shall be conducted for its credibility, and whether the basis is direct or circumstantial
  • An investigation report is written up documenting the investigation and the evidence unearthed including further action;
  • Information collected during the investigation shall be kept confidential, and only made available to those individuals who are involved in the case presentation.

At some stage during an investigation, it is often common practice for the employer to send a formal "show cause" letter to the accused employee to demand an explanation for his/her wrongful behavior.

8.

What are the possible penalties that the employer can impose?

The possible penalties that the employer can impose depending on the severity of the misconduct are as follows:

  • Oral warning with counseling
  • Written warning
  • Downgrading/Demotion
  • Suspension without pay for not more than two (2) weeks; or
  • Outright Dismissal
9.

What is the meaning of Condonation ?
Condonation is the act of overlooking or forgiving an offence. When an act of misconduct has been committed and is known to the Management, the Management must decide quickly within the reasonable time whether the misconduct warrants disciplinary action. If the Management fails to take an appropriate action or any action at all against the employee who has committed the act of misconduct, the Management is said to have condoned the act itself.

10.

Can an employee's activities after working hours be considered misconduct?
An employee may be involved in activities or behaviour which not illegal may be considered improper by society in general. An employee can only be dismissed if  his behaviour leads to some problems in the workplace. If his work is affected then dismissal on the grounds of poor performance would be in order. If his work is     normal but other employees are upset by his presence, this could be cause for     dismissal. Alternatively, if his activities lead the employer to lose trust or confidence     in the employee, then he could be liable for dismissal.

11.

What are the actions that may be taken by an employer when sexual harassment is proven? D
Where an employer conducts an inquiry into a complaint of sexual harassment and if he is satisfied that the sexual harassment is proven, the employer is required:
1.    To dismiss the employee without notice;
2.    Downgrade the employee; or
3.    Impose any punishment the employer sees fit.

12.

What should be done when an employee is reported absent for three days?

 

Human Resource Department should have a reporting system whereby any worker who has absent for three days will be investigated.

  1. They should make an effort to contact the worker to find out what has happened. If the worker has a telephone number at home, he should be rung. His colleagues should be questioned as they may know where he is.
  2. If he disappears without trace or good reason, the employer should send a registered letter to his last known address requesting him to contact the company and explain his absence. If he should have a good excuse (rare), he will be allowed to resume work and no further action is required.
  3. If he fails to respond or has no reasonable excuse, he should be given a letter of termination.

13.

Can an employee's activities after working hours be considered misconduct?

 

An employee may be involved in activities or behavior which not illegal, may be considered improper by society in general. The employee may be dismissed if his behavior leads to some problems in the workplace. If his work is affected then dismissal on the grounds of poor performance would be in order. If his work is normal but other employees are upset by his presence, this could be cause for dismissal. Alternatively, if his activities lead the employer to lose trust or confidence in the employee, then he could be liable for dismissal. If an employee is arrested and charged by the police for some charge unrelated to his work and is later released on bail pending a court hearing, he is entitled to return to work.

14.

What are the difference between a preliminary investigation and a domestic inquiry?

 

A preliminary investigation is a first step taken when there is a case of alleged misconduct. It is merely a fact finding mission to collect evidence as would be carried out by the police in a criminal case. Whilst a domestic inquiry is the process of examining the evidence by an unbiased, neutral party to decide on the guilt of an accused person as is done in a court of law by a judge.

 


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