EXCLUSION ON GROUNDS OF MISCONDUCT
UNDER the Employment Insurance Scheme, employers and employees contribute 0.2 per cent each of an employee’s salary. This is primarily intended to assist employees who lose their jobs due to redundancy. It needs to be understood that there will be times when the management needs to reorganise a business and, in such situations, the company might need to reduce its workforce. This is the reality of the booms and busts in the business cycle.
It must be reiterated that the employment insurance payout is only applicable to employees retrenched due to no fault of either party. It cannot be extended to an employee who is dismissed on grounds of misconduct.
Misconduct, which is the most common ground for dismissal, refers to unacceptable behaviour on the part of the employee related to duty, discipline and immorality.
This includes, but is not limited to, insubordination, dishonesty, drug and alcohol abuse, sexual harassment, negligence of duty, fighting while on the job, improper and unauthorised use of employer’s property, destruction of employer ’s property, threatening, intimidating, interfering with or using abusive language towards others and any other acts directly related to discipline.
There is no requirement in law that the company must prove that it had suffered actual loss before taking any disciplinary action against an errant employee.
Misconduct can be classified as either gross or minor. Gross misconduct refers to serious offences which can take many forms, ranging from offences that jeopardise the functioning of the employer’s business or the safety and well being of employees. This includes offences such as immorality at the workplace, insolence and insubordination, criminal conduct or any other conduct inconsistent with the relationship of an employer and employee. Such offences usually empower the employer to dismiss the employee after giving him an adequate opportunity to refute allegations made against him.
Offences related to work and work performance, such as poor timekeeping, absenteeism, misuse of workplace facilities, personal appearance, negligence or sub-standard work, to name but a few, are usually considered minor misconduct. Such offences will not warrant dismissal for a first offence, but may lead to a verbal or written warning, followed by a disciplinary hearing, if it continues.
Repeated minor misconduct, such as tardiness, can cumulatively result in dismissal, subject to the proper procedures being followed.
Hence, in the interest of discipline and fair labour practice, it is appropriate that temporary financial assistance under the newly established employment insurance scheme should only be made available to an employee terminated from employment due to genuine commercial reasons and not to one dismissed on grounds of gross misconduct.
PROFESSOR DATUK SERI DR ASHGAR ALI ALI MOHAMED
Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia