Employee Discipline and Misconduct

Jayadeva de Silva.M.Sc, FIPM, FITD

Instructions to participants1 Listen to the inputs of the resource person2 Follow the power point presentation which is used to reinforce the key points with visuals3 This learning resource contains the main points of the discussion4 You may add your own notes

Introduction “Management is the process of efficiently getting activities completed with and through other people’’. The Management process includes planning, organizing, leading and controlling activities that take place to accomplish objectives.

Discipline Misconduct Punishment is about, activating retaining or not retaining people

What is Discipline?

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The standard of performance the company expects from the worker is “Discipline”.

Performance is also a kind of behaviour. A kind of behaviour that is expected by the

organization. Assume that employee performance is a function of his skill and motivation. (P = S X M). Some workers will not provide the accepted behavior even if they have the skill and motivation.

Human Resource disciplinary control. right kind of people, in the right number, in right

places, at the right time is part of Human Resource Planning (HRP).

Attracting and retaining the right persons to the organization is important

But only the right persons

What about wrong persons?-Reform or Reject. Discipline is important

Lack of discipline can lead to .. Loss of production Excessive spoilage

Terms Expressed. Implied

Expressed Terms Letter of Appointment

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Disciplinary Code Employee Hand book Notices Circulars etc.

Implied Terms Good Performance of Work Faithfulness/ Honesty Obedience Attendance – Punctuality Respect Employer Care – Diligence Refraining from Liquor/ Drugs Cleanliness After Hours Work Transferability Courtesy to public customer care Adaptability

Sri Lankan Ports Authority Vs Balin SilvaA workman was absent on 3 earlier occasions and duly warned and punished in terms of the Circular.

4th time he was terminated. The L.T. held that it was two harsh a

punishment and that the Circular was enforced discriminately.

The Court of Appeal found no grounds that the Circular was applied discriminately and termination was up held.

Court of Appeal held that the Circular should be strictly applied in order to maintain discipline among such a large group of employees. There were around 15, 000 employees.

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External Force- ie PunishmentEg. An employee who is habitually late (a behavior which is not accepted) is punished (external disciplinary force), so that his behavior is modified. This is an issue that involves discipline, misconduct and punishment.

Discipline Discipline is simply “good behaviour”. A situation where there are no issues, disorder, chaos, confusion, disobedience, misconduct etc. It is the expected standard of behaviour of employees, which is required for an organization to function in an orderly and legal manner.

“the conduct, expected by the organization” ( Silva 1995)

The term discipline refers to a condition in the organization.

When employees conduct themselves in accordance with the organization’s rules and standards of acceptable behaviour. ( De Cenzo and Robbins 1999)

Discipline is about Expected Behavior standards

The word discipline is synonymous with the words regulation, order, control, restraint, obedience

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authority

Further Definitions of Discipline practice of controlling the employees through

strict laws and punishing them when they are violated.

method of encouraging employees to behave in accordance with the standards created by the organization

training that is used to have organization regulations enforced.

official instructions given by the organization as to what an employee should do and should not do. Eg. Work should commence at 8.15 A.M. daily

objective of discipline is to encourage workers to behave in a sensible manner.

Behave in a sensible manner Why do we need Discipline?

In the court case ..The Ceylon General Workers Union Vs Wellawatte Spinning and Weaving Mills Limited ..it was observed “I consider a quarrel among workman a serious

matter and deserves the highest reprimand “. If workman cannot settle their affairs peacefully it

will eventually end in a breakdown or at least destruction the smooth flow of work in the work place

Why do we need Discipline? to regularize the behavior of the employees. smooth and efficient functioning of an

Organization,

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to preserve organizations rules and regulations which are made to achieve objectives.

As a part of the “controlling” function in Management,

for the health and safety of workers prevent accidents

To build a mutual co-operation amongst workers., To co-ordinate different departments of the

Organization, Employee Disciplinary Management (EDM)“It is the systematic procedure of creating, promoting and maintaining employee discipline so that goals and objectives of the Organization are accomplished”..

policy statement. the rules and regulations, Why so authority Awareness . monitor violations. punishment reviewed and revised . creating awareness.

Disciplining Employees BeforePreventive Discipline intended to prevent any rule violation A proactive approach. HR Department can help to create awareness

programmes. create a preventive disciplinary culture in the

organization

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Disciplining Employees After Corrective Discipline after a breach of a discipline prevent any future rule violation. A reactive approach. fire – fighting

Corrective DisciplinePositive Approach not personal. rejects the misconduct not the employee. to reform employees are bound to make mistakes. way forward in HRM

Negative Approach• personal. • rejects Employee not the misconduct. • to take revenge, • employees should not commit any mistake • Way back wards in HRM.

What is Hot Stove Rule?When one touches a Hot Stove, the result is “instant – it burns. People know that if one touches a Hot Stove he /she burns up. This is a ‘warning’. The result of touching a Hot Stove does not change From time to time there is a “consistency” of the result, i.e. each time it is touched, there will be burning. Further the “degree” of the burn depends on the duration you keep touching it, finally the

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result is not “personal”. However, touches get burnt irrespective of, gender, age or statues

Hot - Stove to Punishment “instant”. Response “ Warning “ Prevents “ Consistency” is crucial “ Degree ” Gravity “personal”, No luck

In the case of The Ceylon Plantation Workers Union Vs Superintendent Baddegama Estate It was held that (Our courts have repeatedly held) the fact that an employee occupies an important position in his union doesn’t entitle him to any immunity from punishment or different treatment in the matter of punishment Be positive Progressive Discipline oral warning, 1st st warning, 2nd warning, Final warning 2nd Final warning Termination

Be positive Counseling Approach for Discipline identify the causal effect. Use counseling techniques-listen “ one individual uses a set of techniques or skills to

help another individual take responsibility or

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and to manage their own decision making whether it is work related or personal”

E.g. an employee being late for work regularly Eg Good employee absent regularly as of late

Sandwich Model“Your punctuality is excellent” +“But you always report 15 to 30 minutes late after the lunch break that affects our operation” - “If not you are our most productive worker” +

MisconductThe word Misconduct is synonymous with the words, Misdemeanor, delinquency, transgression, bad behaviour, misbehavior, and wrong doing, offence etc

As per the case of Shalimar Rope Works Mazdoor Union Vs. Shalimar Rope Works Ltd. reported in (1953). “An act should be regarded as an act of misconduct if it is inconsistent, with the fulfillment of express or implied conditions of service or if it has a material bearing on the smooth and efficient working of the concern –

Why does a person engage in acts of misconduct?

economic, environment natural inclination to misconduct, unsuitable working conditions, bad management deviation from past practices,

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denial or neglect of known issues sudden provocation, conflict of interest or values, Psychological reasons, individual styles, disorganization, selfish interest, ulterior motives or malicious intent, disparity in relative

skills, etc Conflict if not resolved lead to

misconduct.

Misconduct Arises Attendance, On the JOB behaviors. Dishonesty, Out side activities.

Gravity of OffencePosition held by the employeeIn the case of H.G. Jayasekera vs The Ceylon Transport Board, a Conductor attempted fraud of Rs.1.40. The Court, taking into consideration the nature of the business which was transporting people for money and the employee’s position, the Court held that “as such the employee, being the conductor who is in charge of collecting the money should act honestly. Hence, this was considered a grave act of misconduct

GravityThe Nature of the Business

In the case of Ceylon Mercantile Union vs. Bartleet and Company, the employee was found trying to remove 16 ounces of tea.

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The Employee’s Union was going on the basis that, as the quantum is small, it is not a grave act of misconduct, but the Court held that the nature of the business was producing tea and what the employee stated was the main produce.

Hence, it was a grave act of misconduct.

In similar case LEWU vs The Superintendent Glen Alpin Group an employee who has worked for 36 years was terminated for having taken 5-6 ounces of tea without the employers permission.

Gravity The Establishment Code E-code states that the seriousness of the misconduct must be judged not only by the Act itself but in relation to the office held by the person concerned and the circumstances surrounding it (p.66 Vol. II).

Absenteeism becomes a misconduct when it is habitual and without authority. In the case of All Ceylon Commercial and Industrial Workers Union VS General Industries Limited it was held that chronic absenteeism strikes to the very root of production, and employer cannot reasonably expected to tolerate such behavior beyond certain point.

In the case of Bawa Crockery House Limited Vs Bhoumik the courts held that absence of the workman for half a day without justification is not misconduct. It has to be habitual and continues.

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Late attendance In the case of Perera Vs The Insurance Corporation of Ceylon it was held that Repeated Unpunctuality is serious breach of duty Negligence , In the case of Lever Bros Eksath Kamkaru Samithiya Vs Lever Bros (Ceylon) . The Supervisor in charge of certain machinery was found sleeping on duty at his work station. The machines should be attended to all the time if

not there could be serious damage caused to the workers and property.

The supervisor’s conduct was considered as an act of negligence

Disobedience, It was held in Premadsa Rodrigo Vs Ceylon Petroleum Corporation the person issuing a relevant order must have the authority to do so, if not there can be no disobedience. Order must be clear, positive and unambiguous. It was held in Equipment and Construction Company Vs Corey that Refusal to obey reasonable orders is a misconduct

Abuse,In the case of Wanija Ha Karmika Sewaka Sangamaya Vs Ceylon Glass Company Hooting ,jeering and humiliating an executive is misconduct. Assault, In the case of Piyasena VS Battaramulla Talangama Town Council it was held that Assaulting a superior

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officer even outside the premises and out of working hours is a grave misconduct In the case of Ceylon Mercantile Union vs M.D.Gunasena and Co Ltd., it was held that Assaulting a fellow employee is misconduct

Dishonesty It was held in the case of The CMU vs M.D. Gunasena and co limited alteration of a medical certificate amounts to misconduct

In the case of Nidahas Karmika Saha Velanda Sevaka Vurthiya Samithiya vs K.W. Susiripala it was held that Diverting the employers customers to a business rival was misconduct.

In the case of The CMU Vs The British Electric Co Ltd it was held that Conspiracy to ruin the employers business, is misconduct .

In the case of Charted Bank of India Vs Patel it was held that disclosing confidential information relating to the employers business, was a dishonest act.

Drunkenness.It was observed In the case of Cloustan & Co Limited Vs Corry The intoxication may be habitual or gross and directly interfere with the business of the employer or the ability of the servant to render service. Or it also could be an isolated act committed under circumstances of festivity and in no way connected with or effecting the employers business , hence it depends on the question of fact .

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In the state sector consumption of liquor in violation of a circular has been held as a serious misconduct

The aspects to be covered before disciplinary action is initiated In Jeewandarage Dayawathi Vs Pugoda Textiles Limited the workman a Machine Operator was dismissed for stealing 03 pieces of cloth

period of service ( 8 years ), the first act of misconduct, negligible value of the pieces of cloth. The workman was a cancer patient who had

undergone surgery on several occasions was terminated. LT she was reinstated without back wages on

one year probation. High Court reversed the decision of the LT, but the Supreme Court restored the order of the

LT.

1. Seriousness of the problemeg Dishonesty is usually considered most serious than reporting to work 20 minutes late.2. Duration of the problem eg.The first occurrence is usually viewed differently than the 3rd or 4th offence.3.Frequency and nature of the problem Eg. Is there a pattern in the occurrence which could be identified4..Employees’ work historyEg. How long, quality of the service, does he have a strong track record, period of service in the organization. Good and bad

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5.Explanatory factors Eg. A person who gets late to report to work on a particular day due to his child being ill should be dealt with leniently than a person who is late due to over sleeping6.Degree of Socialization Eg. Does the employee know the rules and regulations, is he comparatively a new employee who has had not the time to familiarize with the rules and regulations. Has the management made an effort, create awareness 7.History of the organizations discipline practice Eg. Equality demands consistency against some relevant bench mark 8. Implication for other employees Eg. There is little point to taking a certain action against the employee if it has a dysfunctional affect on others in the Unit 9. Management backing Eg. If the employees decide to take case to a high level in management will you have reasonable evidence to justify your decision

Individual disputes may lead to Collective disputes.

Punishment

Sri Laxshmi Saraswathi Motor Transport Co VS Labour Court. A workman who was an office bearer of a union had 17 years of service and a clean record. One day he was found guilty for the delay in

transmitting some documents from the employer’s

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branch office to the head office and he was dismissed.

The worker admitted that it was his fault but said that it was due to forgetfulness.

The Court held that the punishment was grossly disproportionate with the misconduct.

Punishment Oral warning, Written warning Fine or recovery of damages Suspension without pay Transfers Stop, reduce or delay wage increments Demotion Compulsory retirement Termination of service

Rules of Natural Justice ?– Follow Principles “Natural Justice”• Conduct Preliminary Investigation• If sufficient Evidence is available issue SCN• If charges are Serious Suspend Employee• If explanation is unsatisfactory hold the Disciplinary Inquiry.• Inquiring Officer should be impartial Person• If employee is found guilty – Punish him

Consider (a) Gravity of Offence(b) Past Records

Remember Positive Motivational Activities Praise

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Participation Rewards Incentives Promotions

Negative Techniques Punishments

Both will condition Employee conduct to achieve good discipline in work place

Strict adherence is important to gain the confidence of employees towards the disciplinary procedure

Subsequent Actions after Termination– Labour Tribunal – Appeal against the decision of the L.T.

Materials and documents connected to the incident should be removed, sealed and taken to the custody of the relevant authorized officer immediately, giving no room to alter

Record a statement from the suspected employee/employees as soon as possible

Analyze all these evidence to establish whether there is any act of misconduct to pursue further

Start with mentioning place date & time In direct speech Continuation of the pages and page numberingStart of the letter

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Reply before when (sufficient notice)State action if no reply receives (ex-parte inquiry)

InterdictionWhere the presence of the employee in the work place could seriously affect the inquiry, specially the possibility of influencing the witnesses or tampering documents relevant to the inquiry

Payment during interdiction(depends)

– Request for further time

– No reply at all

Respect for the principle of natural justice of giving a reasonable opportunity to the employee of being heard in his defense

Establishing employer’s bona fides at a subsequent L.T. inquiryReasonable opportunity of being heard in his/her defense (allowing the accused to defend/present his side of the case)

Inquiry officer to act in reasonably & in good faith, not arbitrarily and to ensure fair playBALANCE OF PROBABILITY

Procedure Prosecuting officer to lead evidence-in-chief, Cross examination by defense, Re-examine by prosecution &

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question by the Inquiry Officer Inquiry Officer can call any witness again to

clarify any point Leading questions are not permitted Written submission may be allowed after

concluding the oral evidence

Defenseo Silent observero Defending officero Fellow workero Branch union officialo Parent union Officialo Outsider/not a lawyer

Inquiry report Decision on each count Facts based on for the judgment No recommendation for punishment

Punishment According to the outcome Past record Industrial relations aspects

TheoriesDeterrent / Preventive Theory-To prevent the offender and the others from acting in a similar manner in the futureReformation theory-Aiming to reform the offender through punishment

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Selection of witnesses & preparing them for the trial Availability of the witness Reliability of the witness specially if the witness is no longer in the employment

Appeal against the decision of the L.T.

Remember

Importance of Employee Handbook Advising all employees Enforcing the policy consistently

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