An employee is said to commit a misconduct(s) when their actions include inappropriate behaviour, purposeful wrongdoing, and/or intentional breaches of the established standards of conduct. There is also the implied duty of trust and confidence which is sacred to all employment relations.
In Azahari Shahrom & Anor. v. Associated Pan Malaysia Cement Sdn. Bhd. [2010] 1 ILR 423 the Court view that “It is trite that the association between employer and employee out of necessity is fiduciary in nature. There has to be mutual trust and confidence that one would deal with the other in all fairness and rectitude over the rights and obligations flowing between the parties under the employment agreement. If one does an act or commits an omission which is inconsistent with that fiduciary relationship then that act or omission will be mala fides. This principle has equal application as against the employer and the employee in their respective positions viz. the employment relationship between them.”
Previously, in our article titled ‘The Law on Employee Misconduct in Malaysia’, we have identified some misconducts as abscondment, insubordination and sexual harassment. So, what are the other types of misconduct seen in a workplace?
- Other examples of misconduct include: Fighting: In Uthiya Kumar Subramaniam v. Nippon Express (M) Sdn Bhd [2010] 4 ILR 54 the court held that: “(3) Fighting in the workplace has always been considered a serious misconduct, as it disrupts the smooth running of the company and undermines discipline. Hence, the punishment of dismissal could not be said to be excessive as the responsibility for the maintenance of discipline inside the establishment had been managements. In this case, there had not been any justification for the claimant to have taken matters into his own hands and engaged in riotous behaviour. Shamsuri had been dismissed and the claimant’s dismissal had been justified. Thus his claim would be dismissed (paras 10 & 11)”
- Dishonesty: In Perwira Habib Bank (M) Bhd v. Tan Teng Seng [1997] 2 ILR 839 “The claimant, as a bank manager, occupied a position of trust. He should not only be honest but be seen to be honest. Like Caesar’s wife, the claimant must be above all suspicion. His actions and instructions to his subordinates pertaining to the Jade accounts were breaches of duty of fidelity and loyalty and were detrimental to the bank’s nature of business.”
- Moral turpitude: In SGS-Thomson Microelectronics Sdn Bhd Muar v. Ibrahim Ahmad [1997] 3 ILR , court held that “The claimant in doing what he did not only make a serious mistake (which he admitted) but committed a serious misconduct. He had assisted his subordinate to commit theft. Learned counsel pleaded that even if the claimant was found to have committed a misconduct he should not be given the most severe punishment of dismissal considering that this was his first misconduct in his eight years of service. The court considered misconduct involving moral turpitude such as theft or assisting in theft can only be punished with dismissal.”
- Conflict of Interest: In MAC Pacific Sdn Bhd v. Din Heng Yew [1998] 3 ILR 577, the Claimant whilst working for the Company had set up his own Company where the nature of business is similar. Upon search, the Claimant was also found to be the director of the Company and was actively involved in the business. The court held that “1] There was sufficient evidence to prove that the claimant had put himself in a position of conflict of interest by being involved in his own business or illicit business transaction to undermine his employer. Although there was no direct evidence to indicate that he had acted to the company’s detriment, the documentary evidence, and the fact that the claimant was the director of Intrastate, justified the conclusion that the claimant had undermined his employer. Accordingly, the claimant had breached cl. 13(b) of the service contract.
Premjit Singh is the Managing Partner of Prem & Associates (www.premlaw.com) and he can be contacted via email at prem@premlaw.com or mobile at 012-5236755.
Article written by Lee Minli.
