When employees are incompetent at work or engage in serious misconduct related to the performance of their duties, employers might need to take disciplinary actions toward the said employees before terminating them. Employers, however, are bound to abide by specific laws and court decisions that relate to the procedural and substantive requirements to conduct a formal inquiry before taking any disciplinary action.
Example of serious misconduct
Misconduct is the failure to fulfil conditions of employment as written in the contract of service, such as dishonesty, theft, disorderly or immoral conduct at work of insubordination. If an employee has been accused of committing an act of misconduct, employers should inform the employee and do an inquiry before deciding whether to dismiss an employee or to take other forms of disciplinary actions.
See also: At-Will vs. Just Cause Employment
Other reasons that might be considered as fatal misconduct are as follows:
- upon concluding the employment agreement, employees deceived the employer by presenting false or counterfeit certificates or have intentionally given the employer false information on the manner in which his former job had ended,
- indulge in drunkenness, opium abuse or other debauchery,
- molest the employer, his relatives or inmates, or maltreats, grossly insult or seriously threaten his co-employees,
- tempt or endeavour to tempt the employer or his relatives or co-workers into acts in violation of the law or moral standards,
- intentionally or in spite of warnings recklessly causes damage to employer’s property or exposes it to serious danger; if he intentionally or in spite of warnings recklessly exposes himself or others to serious danger;
- disclose details regarding employer’s household or businesses, which the employees should have kept secret; if the employees persistently refuse to comply with reasonable orders or duties, given to him by or in name of the employer;
- in another manner grossly neglect duties which the employees are obliged to undertake;
- if through intent or recklessness, the employees become unable to carry out the duties as conditioned.
File an inquiry
According to the Ministry of Manpower, there is no fixed procedure for how employers should file an inquiry for the said employee. Yet, here is the general guideline employers might consider following:
- Employee should be told of their alleged misconduct
- Employee should have the opportunity to present their case
- The person hearing the injury/misconduct action should not be in a position which might suggest bias.
In accordance with the Employment Act, employers might suspend the employee from work during an inquiry under the following condition:
- Employers must not suspend the employees for more than 1 week without the Commissioner of Labour’s approval.
- Employers must pay employees at least half their salary during the suspension.
- If employers need more than 1 week to complete the inquiry, employers must seek the Commissioner for Labour’s approval at least 3 working days before the end of the 1-week suspension.
- If employers still found misconduct by the same employees after an inquiry is collected/processed, employers can do three of the following choices: instantly downgrade the employee, instantly suspend the employee from work without pay for not more than 1 week, and terminate employment without notice and no salary in lieu of notice will be paid.
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