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Employer And Employee Relation

CHUA AH LEY, 012-6309328, alchua@mohr.gov.myCHUA AH LEY, 012-6309328, alchua@mohr.gov.my

DEPUTYDEPUTY DIRECTOR DIRECTOR OF LABOUR,OF LABOUR, NEGERI SEMBILANNEGERI SEMBILAN..

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In Malaysia, employer and employee relation or specifically ， name as industrial relation which deal with personnel management or management of people at work in organisation is governs by written law or common law.

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Written Labour LegislationsWritten Labour LegislationsEmployment Act 1955;

Labour Ordinance Sarawak;

Labour Ordinance Sabah;

Industrial Relation Act 1967;

Trade Union Act 1957;

Children And Young Person (Employment) Act 1966;

National Wages Consultative Council Act 2011;

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Employment Act 1955;

Labour Ordinance Sarawak;

Labour Ordinance Sabah;

Children And Young Person (Employment) Act 1966;

National Wages Consultative Council Act 2011;

The above laws regulate statutory benefits and terms and conditions of employment such as wages, working hours , maternity protection and leaves.

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Industrial Relation Act 1967;

The above law regulate:-Recognition of trade union;Collective bargaining;Trade Dispute;Unfair Dismissal.

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Trade Union Act 1957;

The above law regulate formation of trade union and its administration.

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Generally personnel or human management can be outlined into three area, i.e Recruitment And Termination;Compensation And Training; andManaging Discipline at Work Place within the ambit of law.

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Recruitment And Termination;

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Contract of Service/EmploymentContract of Service/Employment

In the all the Labour laws, in order to have employer and employee relationship, party need to enter into contract of service/employment.

Contract of ServiceContract of Service

“ “contract of service” means any agreement, contract of service” means any agreement, whether oral or in writing and whether whether oral or in writing and whether express or implied, whereby one person express or implied, whereby one person agrees to employ another as an employee agrees to employ another as an employee and the other agrees to serve his employer and the other agrees to serve his employer as an employee and includes an as an employee and includes an apprenticeship contract.apprenticeship contract.

( section 2, Employment Act 1955)( section 2, Employment Act 1955)

Contract of EmploymentContract of Employment

A contract of employment is any A contract of employment is any agreement, whether oral or in writing and agreement, whether oral or in writing and whether express or implied, whereby one whether express or implied, whereby one person agrees to employ another as a person agrees to employ another as a workman and the other agrees to serve his workman and the other agrees to serve his employer as a workman.employer as a workman.

( section 2, Industrial Relations Act 1967)( section 2, Industrial Relations Act 1967)

Distinction between Contract of Service Distinction between Contract of Service and Contract of Employmentand Contract of Employment

In American International Assurance Co. In American International Assurance Co. Ltd. v Dato’ Lam Peng Chong & Others, Ltd. v Dato’ Lam Peng Chong & Others, I/C Award 275/88, the Industrial Court I/C Award 275/88, the Industrial Court held that there is NO distinction between held that there is NO distinction between the terms contract of service and contract the terms contract of service and contract of employment.of employment.

Determination of Contract of ServiceDetermination of Contract of Service

The following tests are used by the court to The following tests are used by the court to determine whether contract of service exists determine whether contract of service exists or not:-or not:-

a) Control Test;a) Control Test;

b) Organization Test;b) Organization Test;

c) Composite Test; and c) Composite Test; and

d) Multiple Test .d) Multiple Test .

Control TestControl TestLaid down in the case of Laid down in the case of Short v J & W Henderson LtdShort v J & W Henderson Ltd [1946]62TLT 427[1946]62TLT 427 in which 4 indicia to be considered in in which 4 indicia to be considered in determining the existence of a contract of service, there are:-determining the existence of a contract of service, there are:-

a) the master’s power of selection of his servant;a) the master’s power of selection of his servant;

b) the payment of wages or other remuneration;b) the payment of wages or other remuneration;

c) the master’s right to control the method of doing the work;c) the master’s right to control the method of doing the work;

d) the master’s right of suspension or dismissal.d) the master’s right of suspension or dismissal.

Approved by Federal Court in Approved by Federal Court in Employee Provident Fund Board Employee Provident Fund Board v. M.S. Ally & Co. Ltdv. M.S. Ally & Co. Ltd [1975]2 MLJ 89[1975]2 MLJ 89 and Supreme Court in and Supreme Court in Kuala Lumpur Mutual Fund Berhad v. J. Bastian Leo & Anor Kuala Lumpur Mutual Fund Berhad v. J. Bastian Leo & Anor [1988]2 MLJ[1988]2 MLJ

Organization TestOrganization TestDeveloped by Lord Denning in the case of Developed by Lord Denning in the case of Stevenson, Jordan and Harrison Ltd v MacDonald Stevenson, Jordan and Harrison Ltd v MacDonald and Evan [1952] 1TLR 101. and Evan [1952] 1TLR 101. He saidHe said a common a common element in a contract of service, the person element in a contract of service, the person concerned works as part of the organization and concerned works as part of the organization and his work forms an integral part of organization, his work forms an integral part of organization, whereas on a contract foe services, even though whereas on a contract foe services, even though the work is done for the organization, it is not the work is done for the organization, it is not integrated into it but is only accessory to it.integrated into it but is only accessory to it.

Followed by High Court in Followed by High Court in Mat Jusoh v Syarikat Mat Jusoh v Syarikat Sebarang Takir Sdn Bhd [1982]2 MLJ 74Sebarang Takir Sdn Bhd [1982]2 MLJ 74

Composite TestComposite Test

Suggested by Lord Wright in the case of Suggested by Lord Wright in the case of Montreal Locomotive Work Ltd [1947] DLR. Montreal Locomotive Work Ltd [1947] DLR. This test involves the following elements:-This test involves the following elements:-

ControlControl

Ownerships of the toolsOwnerships of the tools

Chance of profitChance of profit

Risk of lossRisk of loss

Multiple TestMultiple TestEnunciated by McKenna J in the case of Enunciated by McKenna J in the case of Ready Mixed Ready Mixed Concrete (South East) Ltd v Minister of Pensions and Concrete (South East) Ltd v Minister of Pensions and Social Insurance [1968]2QB 497 , Social Insurance [1968]2QB 497 , the court held that the court held that the following factors need to be fulfilled before a the following factors need to be fulfilled before a contract of service is established:-contract of service is established:-aa) the employee or servant agrees that he will use his ) the employee or servant agrees that he will use his own expertise and the employer pays him wages or own expertise and the employer pays him wages or remuneration;remuneration;bb) the employee or servant agrees, whether impliedly ) the employee or servant agrees, whether impliedly or expressly, that he will be bound by the employer’s or expressly, that he will be bound by the employer’s instruction; andinstruction; andc) all other terms and condition in the agreement are c) all other terms and condition in the agreement are consistent with the nature of the job, which is a consistent with the nature of the job, which is a contract of service.contract of service.

Application of The TestsApplication of The Tests

No test can be conclusive. The question No test can be conclusive. The question whether or not there is a contract of whether or not there is a contract of service is a mixed one of law and fact. In service is a mixed one of law and fact. In Malaysia the courts generally favour the Malaysia the courts generally favour the control test.control test.

Relationship between the Parties- Relationship between the Parties- Contract of ServiceContract of Service

- - Employer and employee.Employer and employee.

- - Master and servant. Master and servant.

-- Employee or servant must provides Employee or servant must provides personal service.personal service.

Relationship between the Parties- Relationship between the Parties- Contract for ServiceContract for Service

- - Principal and contractor.Principal and contractor.

- - Contractor and subcontractor. Contractor and subcontractor.

-- Contractor or subcontractor Contractor or subcontractor provides provides service but not personal service but not personal service.service.

Termination of Termination of Contract of ServiceContract of Service

-- Under Employment Act 1955Under Employment Act 1955

- - Under Terms and Conditions of Under Terms and Conditions of Service or Common lawService or Common law

Situations Under Which Contract Of ServiceSituations Under Which Contract Of Service Is Terminated Or TerminatesIs Terminated Or Terminates

a)Contractual termination under section 12 of Employment Act 1955 or terms and conditions of service.

b)Dismissal due to misconduct.c)Termination on wilful breach of

contract.d)Expiry of fixed term contract.

e) Termination at the end of probation.

  f) Retrenchment due to redundancy.

g) Lay-off. h) Constructive dismissal. i) Forced resignation. j) Frustration of contract.

Contractual Termination Contractual Termination Under Section 12 Of Under Section 12 Of

Employment Act 1955 Or Employment Act 1955 Or Terms And Conditions Of Terms And Conditions Of

ServiceService

Contractual Termination of Contractual Termination of contract with notice contract with notice

At any time giving the other party notice At any time giving the other party notice of his intention to terminate such of his intention to terminate such contract of service as provided under contract of service as provided under section 12(1), Employment Act 1955 or section 12(1), Employment Act 1955 or terms and conditions of service .terms and conditions of service .

Length of Notice As Provided Under Length of Notice As Provided Under Section 12 Employment Act 1955Section 12 Employment Act 1955

Shall be the same for both parties and shall be Shall be the same for both parties and shall be determined by a provision made in writing for such determined by a provision made in writing for such notice in the terms of the contract service. In the notice in the terms of the contract service. In the absence of such term, the length of notice shall not absence of such term, the length of notice shall not be less than –be less than –a)a) 4 weeks, if the employee has been so 4 weeks, if the employee has been so employed for less than 2 years;employed for less than 2 years;b)b) 6 weeks, if the employee has been so 6 weeks, if the employee has been so employed for 2 year or more but less than 5 employed for 2 year or more but less than 5 years;years;c)c) 8 weeks, if the employee has been so 8 weeks, if the employee has been so employed for 5 years or more.employed for 5 years or more.

(section 12(2) EA 1955)(section 12(2) EA 1955)

Contractual Termination Contractual Termination or Termination Simpliciteror Termination Simpliciter

Termination SimpliciterTermination Simpliciter

Termination by giving due notice Termination by giving due notice or by payment indemnity in lieu of or by payment indemnity in lieu of notice without reasonable cause notice without reasonable cause is amounting to termination is amounting to termination simplicitersimpliciter..

Effect of Termination SimpliciterEffect of Termination Simpliciter

In Federal Court case , Goon Kwee Phoy In Federal Court case , Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129, v J & P Coats (M) Bhd [1981] 2 MLJ 129, Raja Azlan Shah CJ said the following:-Raja Azlan Shah CJ said the following:-“ “ We do not see any material difference We do not see any material difference between the termination of the contract of between the termination of the contract of employment by due notice and a unilateral employment by due notice and a unilateral dismissal of a summary nature. The effect dismissal of a summary nature. The effect is the same and the results must be the is the same and the results must be the same”same”

Effect of Termination SimpliciterEffect of Termination Simpliciter

An employee who is terminated by An employee who is terminated by the employer with due notice or the employer with due notice or payment indemnity in lieu without payment indemnity in lieu without reasonable cause and excuse may reasonable cause and excuse may seek reinstatement to his job under seek reinstatement to his job under section 20 of Industrial Relations Act section 20 of Industrial Relations Act 1967, if he considers the dismissal is 1967, if he considers the dismissal is unfair or unreasonable.unfair or unreasonable.

Compensation And TrainingCompensation And Training

Compensation Compensation

Wages;

Statutory Benefits Under Employment Act 1955;

Termination Benefits; and

Benefits Under Collective Agreement;

Wages Wages

Amount of wages is determined under contract of service or through negotiation under collective agreement ;

From 1.1.2013, Minimum Wages under National Wages Consultative Council Act 2011 will be implemented in which the amount for Peninsular Malaysia is RM 900.00 per month and foe Sabah, Federal Territory Labuan is RM800.00 per month.

Payment of Under EA 1955 Payment of Under EA 1955

Basic wages after lawful deduction – not later than 7 days after the last wages period;

Overtime payment – not later than the last days after the last wages period;

Payment must be made through account; and

Payment by cash or cheque can only be made by consent of employee.

Statutory Benefit Statutory Benefit UnderUnder EA 1955 - Maternity Protection EA 1955 - Maternity Protection

Scope of Coverage

In the recent amendment to Employment Act 1955 which came into force on 1 April 2012, the maternity protection for female employee has been extended to every female employee who is employed under a contract of service irrespective of her wages.

Maternity Leave

Under the Employment Act 1955, female employee is entitled to not less than 60 days of maternity leave for each confinement .

Maternity Leave

Before 1 April 2012, to qualify the meaning of confinement under the Employment Act 1955, the female employee needs to have at least 28 weeks of pregnancy. With the latest amendment which comes into force on 1 April 2012, the period of pregnancy has been reduced to 22 weeks.

Payment of Maternity Allowance

A female employee shall be entitled to receive her full wages during her 60 days of maternity leave from her employer if-

(a ) she has been employed by the employer for a period of, or period amounting in the aggregate to, not less than 90 days during the 9 months immediately before her confinement; and

(b) She has been employed by the employer at any time in 4 months immediately before her confinement.

Payment of Maternity Allowance

A female employee shall not be entitled to maternity allowance if at the time of her confinement she has 5 or more surviving children.

Statutory Benefit Statutory Benefit UnderUnder EA 1955 – Rest Day, Hours of EA 1955 – Rest Day, Hours of

Work , Public Holiday and leave.Work , Public Holiday and leave.

- Every employee shall be allowed in Every employee shall be allowed in each week a rest day of one whole each week a rest day of one whole day as may be determined from time day as may be determined from time to time by the employer;to time by the employer;

s 59(1) Employment Act 1955s 59(1) Employment Act 1955

RESTREST DAYDAY

where more than 1 day in each week where more than 1 day in each week is allowed , the last day shall be the is allowed , the last day shall be the rest day for the purpose of Part XII.rest day for the purpose of Part XII.

s 59(1) Employment Act 1955s 59(1) Employment Act 1955

RESTREST DAYDAY

RESTREST DAYDAY

Not entitled to rest day when employee is Not entitled to rest day when employee is on maternity leave, sick leave, workmen on maternity leave, sick leave, workmen compensation leave or SOCSO leave. compensation leave or SOCSO leave.

For shift workers any continuous period For shift workers any continuous period not less than 30 hours shall constitute a rest shall constitute a rest day.day.

s 59(1) Employment Act 1955s 59(1) Employment Act 1955

Payment On Working on Rest Day

Monthly rated:-Monthly rated:-- ½ ORP for work done - ½ ORP for work done < < ½ normal hours of work ½ normal hours of work - 1 ORP for work done > ½ normal hours of work 1 ORP for work done > ½ normal hours of work but does not exceed normal hour of workbut does not exceed normal hour of work

Daily rated, hourly rated:-Daily rated, hourly rated:-

- 1 ORP for work done - 1 ORP for work done < < ½ normal hours of work ½ normal hours of work - 2 ORP for work done > ½ normal hours of work 2 ORP for work done > ½ normal hours of work but does not exceed normal hour of workbut does not exceed normal hour of work

Piece rated:-Piece rated:--twice his ordinary rate per piecetwice his ordinary rate per piece

Payment On Working on Rest Day

For any work carried out in excess of For any work carried out in excess of the normal hours of work on rest day by the normal hours of work on rest day by an employee, whether he is monthly an employee, whether he is monthly rated, daily dated or hourly rated , he rated, daily dated or hourly rated , he shall be paid overtime payment at a rate shall be paid overtime payment at a rate which is not less than which is not less than two timestwo times his his hourly rate of pay.hourly rate of pay.

S 60(3) (c) Employment Act 1955 S 60(3) (c) Employment Act 1955

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HOURS OF WORKHOURS OF WORK

Employees shall not be required Employees shall not be required under his contract of service to under his contract of service to work : work : -- more than 5 consecutive hours more than 5 consecutive hours

withoutwithout break 30 minutes,break 30 minutes,-- more than 8 hours in one day,more than 8 hours in one day,-- more than 10 hours of spread more than 10 hours of spread over over period in one day,period in one day,-- more than 48 hours in one week.more than 48 hours in one week.

s 60A(1) Employment Act 1955s 60A(1) Employment Act 1955

HOURS OF WORK

Hours of work means-Hours of work means-the time during which an the time during which an employee is at the disposal of employee is at the disposal of the employer and is not free to the employer and is not free to dispose of his own time and dispose of his own time and movementsmovements

COMPUTATION OF HOURS OF WORK

Overtime work on normal dayOvertime work on normal day-1.5 x hourly rate of pay -1.5 x hourly rate of pay irrespective of the basis on irrespective of the basis on which his rate of pay is fixedwhich his rate of pay is fixeds 60(3)(a) Employment Act 1955s 60(3)(a) Employment Act 1955

OvertimeOvertime

Overtime means the number of hours of Overtime means the number of hours of work carried in excess of the normal hours work carried in excess of the normal hours of work per day: of work per day: Provided that if any work is carried out after Provided that if any work is carried out after the spread over period of ten hours, the the spread over period of ten hours, the whole period beginning from the time that whole period beginning from the time that the said spread over period ends up to the the said spread over period ends up to the time that the employee ceases work for the time that the employee ceases work for the day shall be deemed to be overtimeday shall be deemed to be overtime

OvertimeOvertime

Normal hours of work means the Normal hours of work means the number of hours of work as agreed number of hours of work as agreed between an employer and an employee between an employer and an employee in the contract of service to be the in the contract of service to be the usual hours of work per day and such usual hours of work per day and such hours of work shall not exceed the hours of work shall not exceed the limits of hours prescribed in limits of hours prescribed in subsection (1)subsection (1) s 60A(3)(c) employment Act 1955 s 60A(3)(c) employment Act 1955

Normal hours of workNormal hours of work

No employer shall require or permit No employer shall require or permit an employee to work overtime an employee to work overtime exceeding 104 hours per month.exceeding 104 hours per month.Any work carried on a rest day or Any work carried on a rest day or paid gazetted public holiday shall not paid gazetted public holiday shall not be construed as overtime work for the be construed as overtime work for the purpose of computation of limitation.purpose of computation of limitation.

S 60a(4)(A) Employment Act 1955 & Employment S 60a(4)(A) Employment Act 1955 & Employment (Limitation Of Overtime Work) Regulations 1980(Limitation Of Overtime Work) Regulations 1980

Limitation Of Overtime

Except in the circumstances Except in the circumstances described in paragraph (2)(a),(b),described in paragraph (2)(a),(b),(c), (d) and (e), no employer shall (c), (d) and (e), no employer shall require any employee under any require any employee under any circumstances to work for more circumstances to work for more than twelve hours in any one day.than twelve hours in any one day.

Limitation of Hours of Work In One Day

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GAZETTED PUBLIC GAZETTED PUBLIC HOLIDAYS HOLIDAYS

PAID HOLIDAYS AT ORDINARY RATE OF PAID HOLIDAYS AT ORDINARY RATE OF PAY ON THE FOLLOWING DAYS IN ANY ONE PAY ON THE FOLLOWING DAYS IN ANY ONE CALENDAR YEAR:-CALENDAR YEAR:-  1111 days of which four of which are days of which four of which are compulsorycompulsoryandandAny special day declared by the Any special day declared by the Federal under section 8 of the Holidays Federal under section 8 of the Holidays Act 1951Act 1951

PAID PUBLIC HOLIDAYSPAID PUBLIC HOLIDAYS(S60D Employment Act 1955)(S60D Employment Act 1955)

thethe National DayNational Day

the Birthday of the Yang di-Pertuan the Birthday of the Yang di-Pertuan

AgongAgong

the Birthday of the State Ruler or TYT the Birthday of the State Ruler or TYT

Negeri Negeri

the Workers’ Day the Workers’ Day

Malaysia DayMalaysia Day

4 Days Are Compulsory (Cannot Be Substituted) As Below:

Notice On Remaining SixNotice On Remaining Six Gazetted Public HolidayGazetted Public Holiday

Before the commencement of each Calendar year, the employer shall exhibit conspicuously at the place of employment a notice specifying the remaining six gazetted Public Holidays in respect of which his employee shall be entitled to paid holidays

Working On Paid HolidayWorking On Paid Holiday

An employee may be required by his employer to work on paid holiday and in such eventin such event he shall, in additionin addition to the holiday pay, entitled to-Two days’ wages at ORP rate for monthly, weekly, daily hourly rate employee.

Twice the ordinary rate per piece forPiece rate employee.

Regardless that period of work done on that day is less than normal hours of work.

Overtime on paid holidayOvertime on paid holiday -

Not less three time his hourly rate of pay

Holiday falls on half working dayHoliday falls on half working day

Ordinary rate of pay payable shall be that of a full working day.

Gazetted Public Holiday PayGazetted Public Holiday Pay

Wages at his ORP for one day holiday;Wages at his ORP for one day holiday;

[ s 60D(1) EA 1955 ][ s 60D(1) EA 1955 ]For monthly rated employee, he shall be For monthly rated employee, he shall be

deemed to have received his holiday pay if deemed to have received his holiday pay if he continue to receive his monthly wages he continue to receive his monthly wages without abatement in respect of the day on without abatement in respect of the day on which he is on holiday.which he is on holiday.

[ s 60D(2A) EA 1955 ][ s 60D(2A) EA 1955 ]

  

SICK LEAVESICK LEAVE  

Entitlement Per Calendar YearEntitlement Per Calendar Year  

Less than 2 years service - 14 daysLess than 2 years service - 14 days  

2 to 5 years service2 to 5 years service - 18 days - 18 days  

More than 5 years service - 22 daysMore than 5 years service - 22 days  

Hospitalisation leave - 60 days Hospitalisation leave - 60 days     

ConditionsConditionsCertified by registered medical Certified by registered medical practitioner appointed by the employer practitioner appointed by the employer (including dental surgeon)(including dental surgeon)

Inform employer within 48 hoursInform employer within 48 hours  Exception: Exception: Not entitled when receiving maternity Not entitled when receiving maternity allowance or while receiving payment allowance or while receiving payment under Workmen’s Compensation Act under Workmen’s Compensation Act or under the SOCSO Act.or under the SOCSO Act.

ANNUAL LEAVEANNUAL LEAVE

Entitlement Per 12 MonthsEntitlement Per 12 Months

Less than 2 years service - 8 daysLess than 2 years service - 8 days2 to 5 years2 to 5 years -12 days -12 daysMore than 5 yearsMore than 5 years -16 days -16 days

  

ConditionsConditions

Absent more than 10 % - forfeitedAbsent more than 10 % - forfeited  Upon termination – entitled to in lieuUpon termination – entitled to in lieu( unless dismissed for misconduct)( unless dismissed for misconduct)  When on annual leave he becomes When on annual leave he becomes sick with a sick leave certificate annual sick with a sick leave certificate annual leave shall be considered not taken.leave shall be considered not taken.

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The process of discipline employee’s The process of discipline employee’s misconduct is having of Inquiry which is misconduct is having of Inquiry which is required :-required :-

By Law ;

By terms of employment whether express or implied; and

By Industrial Code that recognized by the court.

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Requirement Of Inquiry –by lawRequirement Of Inquiry –by law

An employer may, ‘after due inquiry’ on the grounds of misconduct inconsistent with the fulfillment of the expressed or implied conditions of his service –

(a) dismiss without notice the employee; (b) down-grade the employee; or

(c) impose any other lesser punishment by as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall

not exceed a period of two weeks”

Section 14( 1 ) , Employment Act 1955 ( Act 265 )

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Requirement Of Inquiry –by terms of Requirement Of Inquiry –by terms of employmentemployment

Required under express or implied terms of employment as per

(a) contract of service; or(b) collective agreement

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Requirement Of Inquiry –by Industrial CodeRequirement Of Inquiry –by Industrial Code

“The reasonableness of the dismissal may well depend on the procedure followed. In this context, it is pertinent to point out that art 42 of the Code of Conduct of Industrial Harmony (the Code) – jointly agreed upon on 9 February 1975 by the Malaysian Council of Employers’ Organisation and the Malaysian Trade Union Congress, with the approval of the Minister for Labour and Manpower – provides, inter alia, for pre-dismissal inquiry with the right to be informed in writing of the misconduct alleged, an opportunity given to the Employee to state his case , the right to be represented by his workers’ representative or trade union

official and where appropriate, a right of appeal.”

Said Dharmalingam bin Abdullah v Malayan Breweries (Malaya) Sdn Bhd [1997] 1 MLJ 352

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What is Misconduct ?What is Misconduct ?

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What is Misconduct ?What is Misconduct ?

Employment Act 1955 or Industrial Relation Act 1967 does not formally define employee or workman “misconduct”

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The Industrial Court in Liew Ken & Ors and The Industrial Court in Liew Ken & Ors and Malayan Thung Pau Bhd (Award 37 of 1974) Malayan Thung Pau Bhd (Award 37 of 1974)

observed:observed:

Insofar as the relationship of industrial employment is concerned, a workman has 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 towards his employer, unless it be of a trifling nature, would constitute an act of misconduct.`

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The word “misconduct” has been judicially The word “misconduct” has been judicially defined by Willes J in the judgment defined by Willes J in the judgment of the Court of of the Court of Appeal in Harmer v. Cornelius 141 ER 91, at p. 98 Appeal in Harmer v. Cornelius 141 ER 91, at p. 98 as:as:

The failure to afford the requisite skill which has been expressly or impliedly promised, is a breach of legal duty, and therefore misconduct.

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O.P. Malhotra in the Law of Industrial Dispute defines "misconduct: as:-

"Any conduct on the part of an employee inconsistent with the faithful discharge of his duties towards his employer would be a misconduct. Any breach of the express or implied duties of an employee towards his employer, therefore, unless it be of trifling nature, would constitute an act of misconduct. In industrial law, the word "misconduct" has acquired a specified connotation. It cannot mean inefficiency or slackness. It is something far more positive and certainly deliberate. The charge of "misconduct", therefore, is the charge of some positive act or conduct which would be quite incompatible with the express and

implied terms of relationship of the employer".

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Misconduct Includes:Misconduct Includes:

An Act which an employee should not have done but he had done it e.g falsifying a medical chit.

An omission is something which the employee must do, but has failed to do e.g failed to exercise care in doing the work.

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Major Misconduct - ExamplesMajor Misconduct - Examples

MisappropriationMisappropriationTheft/pilferageTheft/pilferageFraud/dishonestyFraud/dishonestyFightingFightingAssaultingAssaultingWillful insubordination or disobedienceWillful insubordination or disobedienceSmoking in prohibited areasSmoking in prohibited areasHabitual late comingHabitual late comingSexual harassmentSexual harassmentHabitual absenteeismHabitual absenteeism ( the lists are not exhaustive )( the lists are not exhaustive )

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Minor Misconduct - ExamplesMinor Misconduct - Examples

Coming lateComing late

AbsenteeismAbsenteeism

Failure to wear uniformFailure to wear uniform

Loitering during working hourLoitering during working hour

Consuming food while workingConsuming food while working

( the lists are not exhaustive )( the lists are not exhaustive )

Fiduciary Relation Between Employer And EmployeeFiduciary Relation Between Employer And Employee

  B.R. Ghaiye in his text B.R. Ghaiye in his text Misconduct in EmploymentMisconduct in Employment Chapter Chapter XIX at pages 650 states:-XIX at pages 650 states:-"The servant stands in a fiduciary relation"The servant stands in a fiduciary relation The relation The relation between an employer and an employee is of fiduciary between an employer and an employee is of fiduciary character. The word "fiduciary" means belonging to trust or character. The word "fiduciary" means belonging to trust or trusteeship. It means that whenever an employer engages a trusteeship. It means that whenever an employer engages a worker he puts trust that the worker will faithfully discharge the worker he puts trust that the worker will faithfully discharge the service and protect and further the interest of the employer. A service and protect and further the interest of the employer. A fiduciary relationship exists between employer and employed:fiduciary relationship exists between employer and employed:

: (a) whenever the former entrusts the latter : (a) whenever the former entrusts the latter with property, tangible or intangible, eg, with property, tangible or intangible, eg, confidential information and relies upon the confidential information and relies upon the other to deal with such property for the benefit other to deal with such property for the benefit of the employer, or for purposes authorized by of the employer, or for purposes authorized by him, and not otherwise,him, and not otherwise,

, (b) whenever the employer entrusts the employee with a task to be performed, eg, the negotiation of a contract, and relies on the servant or agent to procure the best terms available. If the employee does an act which is inconsistent with the fiduciary relationship, then that will be an act of bad faith for which his services can be terminated. The said obligation is an implied obligation, ie, an obligation attached to every contract of service even when there is no express mention in the contract. The obligation to serve his master with good faith and fidelity arises out of necessary implication which is deemed to be engrafted on each and every contract of service. This implied condition is recognized on account of realization of the need of full confidence between the employee and the employer and this implied condition continues even after an employee has left the service. If an employee continues in service, then one of the obvious remedies for breach of faith is to dismiss him

In In Pearce v. Foster And OthersPearce v. Foster And Others [1886] (71) QBD 536 C.A.,  [1886] (71) QBD 536 C.A., Lopes, L.J. said as follows:Lopes, L.J. said as follows: --

  "If a servant conducts himself in a way inconsistent with the "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."discovers it afterwards, in dismissing that servant."

Negligence Or Carelessness [QUOTES]

[1][1]   I I n strict legal analysis, negligence means more than n strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, commission: it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom breach, and damage thereby suffered by the person to whom the duty was owed.the duty was owed. (Lochgelly Iron & Coal Co v. M'Mullan [1934] AC 1 )

[2][2]Employees have an implied duty under their contract of Employees have an implied duty under their contract of employment to work with due care. Failure to exercise employment to work with due care. Failure to exercise this care is a serious misconduct.this care is a serious misconduct.((Termination of Employment, Termination of Employment, Understanding The Process"Understanding The Process" oleh Maimunah Aminuddin  oleh Maimunah Aminuddin ))

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Sayonara…..