TOPIC REVIEW THREE: DISCIPLINE IN THE WORKPLACE

SECTION A: SHORT ANSWER (10 MARKS)

Explain in your own words and provide a scenario to show your understanding of the following terms
regarding discipline in the workplace:

1. Insubordination (5 Marks)

When an employee refuses to obey the legal, moral, and reasonable instructions of a manager or
supervisor after fully understanding or acknowledging them, this is called insubordination. In other
words, insubordination is an employee's willful refusal to follow reasonable and lawful instructions from
an employer. There are three factors for insubordination: first, the order is given by a person in a
position of authority; second, the employee intentionally refuses to obey the order; and third, there is a
clear, reasonable, and lawful order.

Employees have the right to obey all lawful and reasonable orders given by their employers. Workplace
insubordination occurs when an employee intentionally refuses to follow the employer’s legal and
reasonable instructions. An example of insubordination is Abu’s boss assigning him a duty to assist
clients in arranging such as accompanying client go to restaurants to have lunch after the meeting. Well
after lunch send back the client to the hotel in order to leave a good impression on the company.
However, Abu intends to decline it because it is not part of his regular job duties it will be considered as
insubordination. However, if Abu disagrees with this duty, he has the option to speak up or provide
feedback on the company's procedures so that his boss will aware of it.

2. Condonation (5 Marks)

Condonation is the act of condoning, ignoring, overlooking or forgiving an offense. It occurs when the
management discovers misconduct by an employee. The management has to enquire whether such
misconduct needed disciplinary action within a reasonable period. If they fail to take appropriate action
or ignore it, it means that they have condoned the employee’s misconduct.

One of the examples of condonation is, Ali always went late into the office, and his boss is well aware of
his misconduct, but he still chooses to ignore it. In this scenario, it will be very difficult for Ali’s boss to
dismiss Ali’s employment, due to his ignorance at the beginning which is considered as a condonation. In
this case, if Ali’s boss is dissatisfied with Ali’s misconduct for being late to the office, he should warn Ali
either verbally or issue a written warning at the beginning so that Ali was given time to change his
behavior. If Ali continues to do so, Ali’s boss can take immediate action to dismiss Ali based on his
misconduct.
 BAWB4014 LABOUR LAWS AND INDUSTRIAL RELATIONS

SECTION B: SCENARIO BASED (20 MARKS)

1. The reasons why the company suspended him while they were still investigating the misconduct.
(5 marks)

Based on the scenario given, Kenny is being accused of taking bribes from a customer of the company.
Hence, the company suspended him while they were still investigating the misconduct. Pending any
investigation, the company chooses to suspend Kenny in order to avoid Kenny influencing or tampering
with the evidence if he was allowed to remain in his job position. Besides that, if the company has
reason to believe that Kenny’s misconduct would affect other employees in the company this would be
also one of the reasons to suspend Kenny. Another reason is the company would want to prevent Kenny
from having further contact with the customer or other employees of the company who could be
involved in this case.

In addition, according to Section 14(2) of the Employment Act 1955, the company being the employer
has the right to suspend Kenny who is being accused of committing misconduct, pending investigation.
By suspending Kenny pending investigation would limit him to get in touch with the company’s
employees and to access to the company’s premises.

2. Whether Syarikat Celomix has observed proper and legally correct disciplinary procedure starting
from the time they conduct the investigation, the action by Zainal and their decision to conduct
the domestic inquiry without his presence. (10
marks)

Based on this scenario given, the company has not followed a proper and legally correct disciplinary
procedure starting from the time they conduct the investigation.

Firstly, the company shall pay Kenny not less than half his wages during his suspension period. Secondly,
the company did not issue a notice of inquiry or charge sheet to Kenny which must contain the relevant
criteria required under the Employment Act as below:

- Venue date and time of the inquiry, facts of the inquiry

- Facts of the misconduct – nature of misconduct, date, time
- Relevant rules that have been breached
- Name of the persons/object involved
- Statement regarding suspension, if necessary
- Notification that inquiry may have proceeded ex parte if the employee fails to attend the
domestic inquiry

The notice of inquiry must be served personally to Kenny and Kenny must acknowledge receipt by
signing a duplicate copy. This procedure is also not done by the company based on the scenario.

Thirdly, the company Syarikat Celomix also failed to set up the proper panel of inquiry which must
consist of more than a person. Besides Zainal as a Chairman to run the inquiry, the panel must have
other panel member of at least a senior or at least of equal rank to Kenny and a Secretary to record the
whole process of inquiry. Zainal’s action in called Kenny into his office to hear his side of the story might
disqualify him to be involved in the inquiry. As Zainal must not be brief regarding Kenny’s incident
before the inquiry is carried out.
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 BAWB4014 LABOUR LAWS AND INDUSTRIAL RELATIONS

Next, the company’s decision to conduct the domestic inquiry without Kenny’s presence is also wrongful
as Kenny must be given an opportunity to be heard and/or given the chance to defend himself against
the accusation. Any findings made by the panel without a proper disciplinary procedure and/or without
due inquiry, would constitute a ground for Kenny to sue for unfair dismissal.

3. Assuming that Kenny was indeed guilty, whether the company was right in terminating him since
this is his first offence since working for the company for the past eight years. Is there a more
appropriate punishment to be given in this case? (5
marks)

According to Section 14(1) of the Employment Act 1955, it provides that an employer may, on the
grounds of misconduct inconsistent with the fulfillment of the express or implied conditions of his
service, after due inquiry.

(a) Dismiss without notice the employee

(b) Downgrade the employee; or
(c) Impose any other lesser punishment 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

By applying the above provision to the current scenario, assuming the company had carried out a proper
domestic inquiry on Kenny and found that Kenny is guilty of the misconduct, the company was right in
terminating him.

However, there are several factors for the company to consider before making a decision to terminate
him such as the seriousness of the offense, the intention of the employee, and the employee’s past
record. Since this is Kenny’s first offense and he has been working for the company for the past eight
years, the company may consider other more appropriate punishments to be imposed on Kenny. The
company may consider to imposed lesser punishments such as demoting him and/or transferring him to
another department and/or suspending him for two weeks without wages is imposed.

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