Mar 23, 2011

Employee Misconduct: Disobedience, Disrespect, Insubordination

It is settled law that willful disobedience of a lawful and reasonable order will justify summary dismissal. The important words in this respect are: ‘willful’, ‘lawful’ and ‘reasonable’ (Unipamol (M) Sdn. Bhd. v. K.J.J. Cleetus, IC Award No. 66/75). In this case the Court stated further that, “the Claimant as a senior responsible member of the Staff had a right to complain against the orders as unworkable, if he were expected to maintain productive results in the Weighbridge section.  The Claimant’s exercise of this right, the Court finds, does in no way means that he completely disobeyed orders or deliberately defied authority. The proper course for the Management should have been, if there was the necessity to alter the Hours and Days of duty for the Claimant, to make orders objectively for the good of the Company as a whole. The Court finds this an obvious case of personality-clash where one in supreme authority does his utmost to crush another having delegated authority. The Court comes to the unanimous conclusion that there was not misconduct at any time on the part of the Claimant to show willful disobedience to lawful and reasonable orders to justify his dismissal”.

What constitutes willful disobedience is expressed in the case of Adam v. Maison de Luxe, Ltd. ((1924) 35 Comm. L.R. 143)(Australia High Court) where the learned Judge observed as follows:

“It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, the impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain.  But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of valuable accruing rights, together with some degradation - altogether a severe penalty - is, in my opinion, quite a different matter.  Such a justification requires the disobedience to be as phrased “willful disobedience of a lawful order”. 

To be exact, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance (See South-East Asia Fire Bricks Industries Sdn. Bhd. v. Two employees, IC Award No: 18/75).

Willful and persistent refusal by an employee to obey the lawful order of his employer is one of the serious offences punishable by dismissal, considers it right to look into the past conduct. However, a single misconduct may justify dismissal only where the misconduct is such that it goes to the root of the contractual relationship of master and servant so as to indicate unwillingness on the part of the servant to continue to be bound upon his original terms of contract (Kartar & Sundar Singh Omnibus Co. Ltd., v. Transport Workers’ Union. IC Award No: 7/70.). Judgment of Lord Evershed in Laws v. London Chronicle (Indicator Newspaper) Ltd. (1959) W.L.R. 698 is also relevant:

It is settled law that “willful disobedience of a lawful and reasonable order will justify summary dismissal since willful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely the condition that the servant must obey the  proper orders of the master and that unless he does so the relationship is, so to speak, struck at fundamentally”.

On the refusal to acknowledge receipt of warning letters, it has been held in Menon v. The Brooklands (Selangor) Rubber Co. Ltd. (1968) 2M.L.J. 186(F.C.), that such refusal would constitute good grounds for summary dismissal.  In this case, the Court found that “the contumacious manner in which that appellant refused to obey instructions to see the manager of the estate went beyond a mere isolated act of disobedience of a lawful order.  It challenged and rejected the whole fabric of the relationship of employer and employee and effectively destroyed the trust which must subsist in any such relationship where the employee holds a responsible position”.  In Palm Beach Hotel Sdn. Bhd. v. Lim Sim Tiong and 6 others (IC Award No: 48/74) although the Court agrees broadly with the ration decidendi of the above-mentioned judgment, but the Court said still it is open to the Court to examine each case on the merits to find out if there has been any unfair labour practice or victimisation in the issue of such warning letters.

The statement by the
Industrial Court
in Kamiri Estate v. Munusamy s/o B.A. Rajanaido (
IC Award No: 22/75) is relevant to describe “disrespect”:

“The Court finds further that by using such a word an by his manner of approach as mentioned earlier he did cause fear of hurt to his superior, sufficient to constitute a subordinate’s disrespect for authority.  The Claimant like any other worker must learn to respect authority so as not to undermine discipline among other workers.  No Management can succeed in productivity and efficiency without a disciplined labour-force.  To be disciplined does not mean to be regimented but to behave is such a manner as to project a good image on the industry or the establishment the workers belong to for the common good, thereby giving public confidence in its progress.  It is best for the Claimant to realise from now onwards the value of co-operation in the wider interests of harmony in industrial relations, rather than by confrontation roll like a stone from Estate to Estate, as he did, gathering no moss for himself so far”.

In Batang Bus Company Ltd. v. Transport Workers Union (IC Award No: 29/69), the employee refused to comply with the request of the Company to submit two copies of his (the employee) photographs together with signed copy of the letter of the Company by way of an acknowledgement. The Industrial Court see this as an act of insubordination, and then the suspension of his Public Service License for being rude to a passenger and in view of his past record, the Court is of the view that his dismissal was not improper.

Willful Insubordination or disobedience of a lawful or reasonable order of a superior constitutes misconduct which would justify dismissal.  In the words of Justice Sarkar, in Calcutta Jute Manufacturing Co. Ltd. v. Calcutta Jute Manufacturing Workers’ Union ((1961) I.I L.L.J. 686 (S.C.) :

“Insubordination would include defiance of persons in authority whether such persons were the direct superiors of the workmen charged or not. It would also include riotous conduct which made it impossible for the higher officers to discharge their duties properly”.

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