Employee Misconduct

Meaning of Misconduct

Generally, misconduct is when an employee breaches their obligations under their contract of employment or employment relationship, including Standing Orders issued by the employer. Therefore misconduct may be in the form of a single event or a pattern of behaviour. ‘Misconduct’ also means failure of duty or willful conduct that is unsatisfactory.

One of the tasks of the Industrial Court in Malayan Thung Pau Bhd. v. Four employess (IC Award No: 37/74) was to consider whether the misconduct complained of was of such a nature as to warrant dismissal. The Industrial Court judge states,

“The dictionary meanings of the word “misconduct” are “improper behaviour; intentional wrong doing or deliberate violation of a rule of standard of behaviour”.  In so far as certain express or implied obligations towards his employer.  Any conduct on the part of an employee inconsistent with the faithful discharge of his duties or any breach of the express or implied duties of an employee toward his employer, unless it be of a trifling nature, would constitute an act of misconduct”.

Scope of Misconduct

In deciding whether conduct is in fact misconduct, the employer will have regard to the Employment Standing Orders.  Examples of behaviour which may be examined as possible misconduct include conduct which is an obstacle to the satisfactory performance of the work, failure to comply with a reasonable instruction given by the employer, bullying behaviour that may be reasonably perceived as harassing, intimidating, overbearing or physically or emotionally threatening, or other unsatisfactory conduct which breaches the Standing Orders, and an action of the employee which is prejudicial to the health or safety of other employee(s)

Some act of misconduct is categorized as “serious misconduct” where recurrence or continuation of conduct which has been previously found to be misconduct on the part of the employee, or serious misbehaviour, which may be a single occurrence, of a kind which constitutes: a serious impediment to the carrying out of an employee’s duties, or to other employees carrying out their duties; a serious risk to the safety of employees; a serious risk to the employer’s property; or, a conviction by a court of an offence which constitutes a serious impediment to the carrying out of the duties. Behaviour that constitutes serious misconduct can take many forms but could include serious and/or persistent harassment or bullying, or a criminal offence such as theft, fraud or assault.

Usually misconduct to include “underperformance” i.e. when the employee failed to meet the performance standards of his or her position.

Determining Misconduct

In determining misconduct, the Industrial Court in Tractors Malaysia Berhad v. Wong Kam Yoon (IC Award No: 29/72) had referred to “Prem’s Judicial Dictionary”, and gave these conclusion:

“Two criteria in considering when misconduct is established are:-

(1) the intentional doing of something which the doer knows to be wrong; and  

(2) which he does wrecklessly not caring what the result would be. 

In the same Dictionary which sets out a list on “misconduct of servant”, it is stated that it will be a misconduct “if the act or conduct” is prejudicial orlikely to be prejudicial to the interests of the master or to the reputation of the master”.