Misconduct and disciplinary action: proportionality of punishment with reference to industrial court awards
In determining the appropriate punishment for the alleged misconduct, the company is entitled to consider the aggravating circumstances that count against the employee, such as the seriousness of the offense, his position in the company, to what degree did any element of trust exist in this emplo...
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| Format: | Article |
| Language: | English |
| Published: |
LexisNexis Malaysia Sdn Bhd
2016
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| Subjects: | |
| Online Access: | http://irep.iium.edu.my/51219/1/Recent_MISCONDUCT_AND_DISCIPLINARY_ACTION.pdf http://irep.iium.edu.my/51219/ |
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| Summary: | In determining the appropriate punishment for the alleged misconduct, the
company is entitled to consider the aggravating circumstances that count
against the employee, such as the seriousness of the offense, his position in the
company, to what degree did any element of trust exist in this employment
relationship. The extenuating circumstances such as self-defense, provocation,
coercion, lack of intent and necessity, among others things is also considered.
Further, the mitigating circumstances in favour of the employee that should be
considered include the employee’s length of service, his position in the
company, his previous work and disciplinary record, does he show any remorse
and if so to what degree, is he prepared to make restitution if this is possible, did
he readily plead guilty and confess, among other things.1 Only after careful
consideration of the above circumstances would the inquiry panel arrive at a
suitable and fair sanction. The company must act reasonably in deciding
whether the misconduct warrant dismiss. When a dismissal claim under s 20 of
the Industrial Relations Act 1967 (IRA) is referred to the Industrial Court, the
court will have to determine, inter alia, whether the dismissal was with just
cause or excuse and whether the preferred sanction was proportionate to the
gravity of the wrong committed. The principle of proportionality demands
that the alleged misconduct of the claimant and the punishment meted out on
him must be proportional to his culpability in doing what he did. In other words, there must be proportionality between the severity of the misconduct
and discipline or dismissal imposed on the claimant.2 In light of the above, this
article discusses the principle of proportionality of punishment in dismissal
cases with reference to the awards of the Industrial Court. |
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