No employer should quick to judge or neither impose any unjust punishment on any of its employees. There is no automatic right of dismissal nor is there any automatic escape for any employee that commits any act of misconduct. The existence of the doctrine of proportionality is not only to safeguard the interest of employers but ensure that there must a fair punishment imposed on the employee.
The practical application of this doctrine in the industrial relation perspective is that can an employee that is late to work once is immediately dismissed? The answer is NO
This existence of this doctrine assist employers when deciding on punishment to be imposed after evaluating the severity of the act of misconduct to then considering the question does this particular act of misconduct justify dismissal?
It has been established by the development of industrial relation jurisprudence that the duty of the industrial court is two-fold. It has to determine whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct constitutes just cause or excuse for the dismissal.
The Doctrine of Proportionality allows the Industrial Court in evaluating any claim for unfair dismissal when employer imposing punishment which if is unjustified to substitute it.
The Federal Court in NORIZAN BAKAR v. PANZANA ENTERPRISE SDN BHD [2013] 9 CLJ 409
The Industrial Court could substitute its own view, in place of the employer’s view, as to what should be the appropriate penalty for an employee’s misconduct. The doctrine of proportionality of punishment was inbuilt into the Industrial Relations Act and the Industrial Court was duty bound to decide, using that doctrine, whether a proven misconduct constituted just cause or excuse for dismissal. The Industrial Court had the jurisdiction to decide whether dismissal was too harsh a punishment in the circumstances when ascertaining an award under s. 20(3) of the IRA
Here it is important to emphasize for employers to have a clear understanding that major misconduct justifies termination from employment. However employers must be reminded that there are two categories of acts of misconduct which can be broken down to major and minor misconduct and Minor misconduct which only if repeated will amount to major misconduct.
The doctrine of proportionality does not absolve any employee who upon due inquiry is found guilty of any act of misconduct but only provides that examination of the following when imposing punishment;
- The Act of misconduct
- The type of punishment that can be imposed i.e dismissal, suspension, warning
- Definition of major and minor misconduct in the Company Employment Contract/Handbook
- Years of Service
- Past Disciplinary Record
The test applied by the Industrial Court is whether the employer acted reasonably in thinking the employee did it and whether the employer acted reasonably in subsequently dismissing him. If a company before making its decision has considered all the factors above, then thepunishment imposed will be difficult to be questioned if ever any representation of unfair dismissal is made.
To safeguard the interest of every employer, there cannot be any underestimation of devising a comprehensive disciplinary procedure in company handbook to ensure the definition of major and minor misconduct is adequately provided.
Premjit Singh is the Managing Partner of Prem & Associates and he can be contacted at 012-5236755 or email to prem@premlaw.com
