An employee’s actions may be viewed to be unlawful when it has gone out of line with a Company’s policy or terms of employment agreement. In Holiday Inn, Kuching, Sarawak v. Puan Elizabeth Lee Chai Siok [1990] 2 ILR 262 misconduct was referred as: “… improper behaviour, intentional wrong-doing or deliberate violation of a rule of standard of behaviour. In so far as the relationship of industrial employment is concerned, a workman has certain express or implied obligations towards his employer. Any conduct inconsistent with the faithful discharge of his duties or any breach of the express or implied duties of an employee towards his employer unless it be of a trifling nature, would constitute an act of misconduct.”
Hence when an employee conducts wrongful or deliberate actions which breaches the Company’s policy or employees handbook, the employer is required to conduct an inquiry to show that the misconduct committed by the employee is sufficient to justify a dismissal.
In Milan Auto Sdn Bhd v Wong She Yen [1995] 4 CLJ, Court had stated that “The function of the Industrial Court in dismissal cases on a reference under s. 20 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”
Hence, as employers, it is crucial for us to understand what actions amounts to a misconduct as an “employer must produce convincing evidence that the workman committed the offence or offences the workman is alleged to have committed for which he has been dismissed. The burden of proof lies on the employer to prove that he has just cause and excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be, either a misconduct, negligence or poor performance based on the facts of the case” as per the case of Irekka Construction Berhad v. Chantiravathan A/L Subramaniam James [1995] 2 ILR.
Among the category of misconduct are;
- Abscondment: In Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili [2000] 2 ILR 148 (Award No. 354 of 2000): “An absent workman misconducts himself if he is either absent from work without reasonable excuse or, if he has a reasonable excuse, fails to inform or attempt to inform his employer of such excuse prior to or at the earliest opportunity during his absence.” This was seen in Mohd Fazwan Rashid v. Unisteel Technology (M) Sdn Bhd [2022] 2 LNS 1981, where upon the Claimant’s continuous abscondment and failure to inform his employer, the Company had enquire the Claimant on his where beings and conduct a domestic inquiry before terminating the Claimant for his abscondment.
- Insubordination: In Yu Yong Thai v. Embedded Wireless Labs Sdn Bhd: “The claimant by not adhering to lawful and reasonable order to give full cooperation had breached a fundamental or essential condition of his employment which in itself gave the company a just and reasonable excuse to dismiss him. Insubordination is itself a misconduct justifying dismissal.”
- Sexual Harassment and Violence: Shamshir Alam SM Khairuddin v. IBFIM (Award No.662 of 2019): “Sexual harassment is characterized by power imbalances between the individuals involved as in the instant case, where the claimant was the Head of the company’s corporate services and complainant was his subordinate.” “Sexual harassment in the workplace is always based on the perception of the recipient and not on the intent of the harasser. It is quite clear in the present case that the complainant did not take kindly to the claimant touching her ..” and in Shaun Khee Tuck Keat v. Carigali Hess Operating Company Sdn Bhd [2016] 4 ILR:”Harassment is a very serious misconduct and it cannot be tolerated by the employer in any form. The employer bears an obligation to protect its employees from being harassed by their co-workers. Harassment in any form lowers the dignity and respect of the ones who get harassed and disrupts or destroys the harmonious and conducive environment of the workplace. The perpetrators who go unpunished will only intimidate, humiliate and traumatise the victims resulting in an unhealthy working environment…”
