managing discipline17 jun-15
TRANSCRIPT
Managing
Employee
Discipline
LEGALITIES & POLICIES
DISCIPLINE PROCESS & PROCEDURES
CONSTRUCTIVE DISMISSAL
HANDLING INSUBORDINATION,
POOR PERFORMANCE,
ABSEENTEEISM & LATE COMERS
PRACTICAL EXAMPLES OF DISCIPLINE
AT WORK
“Discipline is the bridge between goal and accomplishments”
- Jim Rohn
Discipline refers to the set of actions imposed by an organization on its employees for
failure to follow the organizations rules, standards or policies.
If we don’t discipline ourselves, the world will do it for us.
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The Incivility Continuum
Negative Behavior
Rude comments Insensitive actions Unintentional
slights Complaining Gossip/rumors Cultural bias Crude jokes Profanity
Verbal Aggression
Yelling / loud voice Belittling comments Intimidation /
threats Discriminatory
comments Cursing at
someone Humiliation
Physical / Sexual Aggression
Assault / Battery Throwing objects Violent outbursts
(e.g., hitting the wall)
Inappropriate touching
Harassment
__________
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The following rules explain his theory:
All individuals must be forewarned that if they touch the hot stove (i.e., break a rule), they
will be burned (punished or disciplined). They must know the rule beforehand and be aware
of the punishment
If the individual touches the stoves (i.e., breaks a rule), there will be immediate
consequences (getting burned). All discipline should be administered immediately after
rules are broken.
If the individual touches the stove again, they will again be burned. Therefore, there is
consistency. Each time, the rule is broken; there are immediate and consistent
consequences.
If any other individual touches the hot stove, they will also get burned. Discipline must be
impartial and everyone must be treated in the same manner if the rule breaking is the
same.
Effective Rules Of Discipline:-McGregor (1967) developed a set of rules for enforcing discipline so as to make it as fair and growth producing as possible.
These rules were called “hot stove rules” because they can be compared to someone touching a hot stove..
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The following steps should be taken into
consideration:
Accurate statement of the problem- The first
step is to ascertain the problem by seeking
answer to the following questions:
Does this case call for a disciplinary action?
What exactly is the nature of the violation or
offence?
Under what condition did it occur?
Which individual or individuals were involved
in it?
When or how often, did the violation occur?
Collecting facts bearing on the case- Before
any action is taken in a case, it is essential to
gather all the facts about it. A thorough
examination of the case should be made within
the stipulated time limit.
Selection of tentative penalties- The kind of
penalty to be imposed for an offence should
be determined beforehand.
Choice of Penalty- When a decision has
been taken to impose a penalty, the
punishment to be awarded should be such as
would prevent a recurrence of the offence.
Application of the Penalty- The application
of the penalty involves a positive and assured
attitude on the part of the management. If the
disciplinary action is a simple reprimand, the
executive should calmly and quickly dispose
of the matter.
Follow-up on disciplinary action- The
ultimate purpose of disciplinary action is to
maintain discipline, to ensure productivity, and
avoid a repetition of the offence. A disciplinary
action should, therefore, be evaluated in
terms of its effectiveness after it has been
taken.
Disciplinary Procedure:-
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10 Ways To Create A
Positive Work Environment
1. Build trust
2. Open communication
3. Set expectations
4. Team building
5. Recognition
6. Give credit and take
responsibility
7. Be approachable
8. Positive physical
environment
9. Good performance
management process
10. Have fun
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Opportunities to practice desirable behaviours: If you
have an area where employee performance is a
concern and disciplinary action is required on a
regular basis, identify opportunities to let
employees practice the skills and behaviours
you want them to use more frequently.
Opportunities to participate: Studies have
consistently shown that employees who feel that
their ideas, comments, and suggestions are
heard and heeded report a higher level of
workplace satisfaction and loyalty to the
workplace.
Tools For Employees
Clear policies
Clearly communicated expectations
Opportunities to practice desirable behaviours
Opportunities to participate
Communication skills
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The employment laws on termination &
dismissal;
Types of termination of employment;
The application of the rules of natural
justice in termination of employment; &
Proactive management of employment
termination plus creating & sustaining a
harmonious employment relationship.
Employee Termination
Voluntary Termination Involuntary Termination
Termination initiated by employees,
often due to resignation & retirement.
Termination initiated by employers,
often due to misconduct, absenteeism,
poor performance, & other types of
termination.
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Managerial Prerogatives
Industrial Relations Act 1967, Section 13(3)
1.Employment;
2.Assignment of work;
3.Promotion;
4.Transfer;
5.Termination; &
6. Dismissal
TYPES OF TERMINATION
1.Retirement
2.Resignation
3.Breach of contract
4.Frustration of contract
5.Ending of a fixed term contract
6.Non confirmation of a probationer
7.Retrenchment
8.Dismissal (misconduct & poor performance)
9.Constructive dismissal
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Industrial Court
Statistics(awards Of
Termination Cases)TYPES OF TERMINATION 2005 2006 2007 2008 2009 2010 2011 2012
Constructive 22 42 97 126 140 135 91 96
Misconduct 2144 2051 1200 878 613 608 639 540
Retrenchment 16 32 422 155 114 67 90 62
Others 0 0 402 573 328 479 640 735
TOTAL 2182 2125 2121 1732 1195 1289 1460 1433
Termination: Burden Of Proof
In Stamford Executive Centre v. Puan Dharsini Ganesan (Award 263 of 1985) the Industrial Court observed:
“In a dismissal case the employer must produce convincing evidence that the workman committed the offence or offence of the
workman is alleged to have been committed for which he has been dismissed.……. He must prove the workman guilty and it is
not the workman who must prove himself not guilty. This is so basic a principle of industrial jurisprudence that no employer is
expected to come to this Court in ignorance of it...”
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Employment Termination
One of the difficult task managerial task.
Results from poor selection & ineffective people management.
If termination is unavoidable, proper planning can help to avoid unfair dismissal
claims & other related legal issues.
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Termination Of A Probationer
When the employer seeks to rely on unsatisfactory work
performance or inefficiency or misconduct on the part of the
probationer, the employer must adduce convincing
evidence to justify them & not mere allegation.
Remember, the burden of proof lies on the employer.
The grounds that will enable a termination of probation are:
Unsatisfactory work performance
Misconduct
Reorganisation of company
Retrenchment / redundancy________
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Terminating Poor Performers
Performance goals must be clear.
• Competency development.
• Warning on unsatisfactory work or
incompetence.
• Opportunity to improve performance such
as training.
• Finally, termination should be on proper
grounds.
Did The Company Contribute To The Poor
Performance?
The Industrial Court has clearly laid down the guidelines for dealing
within competence in Ginder Singh Transport Co. Sdn. Bhd v Bijir
Singh Juala Singh [1995] 1ILR516. “An employer ought in the first
place to ascertain the cause for the employee’s poor performance.
Some of the causes may be attributable to the company’s own
weaknesses or inefficiencies in the system of its operations.
The claimant may not have been given the right training or equipment
to do the task assigned to him. He might not have been adequately
instructed as to what was expected of him. If so, the employer should
attend to the problem which is the source of the employee failing to
perform, and the latter can be expected to get on with his work.”
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Increments For Poor Performers
Increments granted to poor performers will also negate an employers contention the employee was a poor performer.
In Davotek Sdn. Bhd. V How Kor Wei – Industrial Court Award 19 of 2000, the employee was given a salary increase in March and
dismissed in April for poor performance. Until his dismissal the company had no complaint on the employee’s performance.
The Industrial Court held the dismissal was without just cause or excuse and ordered reinstatement.
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Typical PM Process
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_______
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Frustration Of Contract
The employee concerned becomes incapable to perform duty due to
an accident or prolonged illness;
The employee concerned was under police detention or custody for
infinite period of time; and
The professional license for the employee concerned to practice a
particular profession was revoked.
FRUSTRATE in the Oxford Dictionary has been explained to "prevent
from progressing, succeeding or being fulfilled“ while frustration means
"being frustrated".
Frustration of contract can be defined as a prevention from continuation
of a contract when the employee who is employed under the contract
becomes unable to perform the work for which he was employed due to
reasons beyond control by both parties (employer and employee).
Doctrine Of Frustration
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Termination For Absenteeism
Based on the EA1955, Section15(2), an employer can terminate an employee if:
1.He has been absent without permission for three or more days; and if,
2.He has no reasonable excuse; or
3.He has an excuse but has not informed or attempted to inform his employer of that excuse. However,
the rules of natural justice must not be ignored.
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Terminating A Fixed Term
Contract
A fixed-term contract clearly states that the employee is to be recruited for
a particular period of time.
In common law, when a contract for fixed term expires, it terminates of itself: it has not been “terminated” by either party. In the
conventional sense, there is neither dismissal nor resignation……The court finds that the employment of the 35 teachers are
ordinary employments dressed up in form of fixed term contract……..As such they…….within the law………right to security of
employment….right not to be dismissed without just cause or excuse.
Industrial Court in Han Chiang High School v National Union of Teachers in Independent Schools,1988
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Retrenchment
Retrenchment is a termination of the contract of employment due to redundancy or reorganization.
However, when the employer terminates the employment contract of an employee on some pretext other than the real reason like
lawful trade union activity, it is called victimization.
The employer should comply with the principle of LIFO unless there are sound and valid reasons for departure.
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Misconduct In Employment
Misconduct (minor & major) can be broadly dealt under the three heading as follows:
1. Misconduct relating to discipline
2. Misconduct relating to duty
3. Misconduct dealing with morality
Termination Due To Misconduct
“Misconduct is any conduct on the part of the employee inconsistent with the faithful discharge of his duties or any breach of the
express or implied duty is of an employee towards his employer would constitute an act of misconduct”
(Industrial Court in Malayan Thung Pau Bhd v Four Workmen – IC Award17/1974).
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Proving The Misconduct
• Fact-finding
• To find out if an offence has been committed & whether or not
accused has a case to answer
• Statements from witnesses
• Relevant documents
The employer has to prove the misconduct alleged against the employee.
In Rasa Sayang Hotel and National Union of Hotel Bar & Restaurant
Workers (Award82 of 1982)the Industrial Court said:
“The court agrees with the union that there is no denying the right of the
employer to punish, but there is also the right of the employee not to be
punished if there has been no offence. Before the hotel can show that the
punishment does fit the crime, it must first prove the crime”.
Investigating Misconduct
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Preparation Of Show-cause
Letter
A charge letter addressed to an accused employee must be in writing & must have the following:-
1. Must contain the allegation or allegations of the misconduct. Allegation or allegations must be simple, clear, accurate
and precise so that the accused can know and understand them.
2. Must state that the accused has to show-cause as to why disciplinary action should not be taken.
3. A reasonable time-frame for the accused to show-cause.
4. If accused does not show-cause within the stipulated time-frame or the excuse given is not accepted, appropriate
disciplinary action will be taken.
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Domestic Inquiry
Domestic Inquiry Is Required By:-
• Statute - Section14(1) of the Employment Act 1955
• Common Law – The rules of natural justice before an employee
can be punished for an act of misconduct
“a formal hearing held by an employer before an employee is
dismissed or before any other major penalty is imposed” Industrial
Relations Act 1967 Section13(3) states that the employers have the
right to dismiss employees who commit misconduct.
However, the right to dismiss is limited by two requirements:
1. Procedural Requirements – the employee must be treated fairly
and justly.
2. Substantive requirements – the employee should not be punished
without sufficient proof of his guilt.
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Rules Of Natural Justice
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‘Hear from the other side’-audi alteram partem: This means no man shall be condemned unheard, the accused must be given
sufficient opportunity not only to know the case against him but also to answer it. He must have the
opportunity to actually see, hear & question all witnesses one by one from whom statements were taken.
‘No man shall judge for his own cause’-nemo judex in causuasua: This means the person who sits in judgments must be an
independent person who is neither the accuser nor the accused or any person who has any interest in o is like of any parties
involved or any bias in any respect. This is to ensure that the person who sits in judgments is
able to act impartially & without bias.
Disciplinary Action
In deciding the nature of disciplinary action to be
meted out, consideration to be taken into
account:-
1. The severity of the misconduct committed.
2. The extent to which the employee is
responsible.
3. The circumstances under which the
misconduct was committed.
4. The past record of the delinquent
employee, including his length of service.
5. Bad past record would be aggravating and
good past record would be mitigating.
Remedy For Dismissal Without Just Cause Or
Excuse
Whether a workman is a member of a trade union or not, he can
file a representation to the DGIR in writing seeking for
reinstatement to his former employment if he considers he was
dismissed without just cause or excuse.
To qualify for this remedy-
must be workman
file representation within 60 days of the dismissal
Upon receipt of the representation, DGIR will take steps as
necessary or expedient for a settlement.
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Unfair Dismissal & Constructive
Dismissal
Unfair Dismissal -the employer must prove a fair reason for dismissal.
Constructive Dismissal -the employee must prove that the dismissal was constructive.
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• Communicated
• Progressive
• Fair
• Consistent
• Documented
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Expectations And
Consequences
Expectations for conduct and behaviour should be stated within the
Employee Handbook and restated regularly, verbally and in writing
Employees should understand the consequences of misconduct and
undesirable behaviour
List specific consequences within the same document that states
behaviour and conduct expectations
Statements of consequences should include steps that will be
taken within the workplace discipline policy
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Implementing Workplace
Discipline Policies
Educating employees
Educating managers
Investigations
Following the steps
Verbal warning
Written warning
Suspension
Termination
Documentation
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Types Of Workplace Discipline
Progressive discipline is the most common and effective type of workplace discipline
1. Non-Disciplinary
Counselling, training, feedback
2. Verbal reprimand
3. Written reprimand
4. Suspension
5. Termination
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Discussion
Proactive measures in managing employment termination
Creating & sustaining a harmonious employment relationship
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HRM – Customer – Profit Chain
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Challenge Remedy
Ensuring managers are addressing same
issues consistently
Training
Documented controlled
discretion
Ensure policy specifically applies to
commonly encountered situations
Ensuring managers are following steps
outlined in the policy
Training
Make changes when required
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Documentation Requirements
Challenge Remedy
Managers unclear on documentation
requirements Training
Inconsistent documentation across
managers Training
Cumbersome documentation
requirements
Redesign the process to maximize
efficiency
Provide managers with allotted time
to complete the required
documentation39
What Leads To Employee
Indiscipline?
Poor employee selection and orientation
procedures.
Poorly defined employee expectations
Poorly understood employee expectations
Improperly selected and trained supervisors
Incorrect philosophy of discipline
Employee Indiscipline Leads To…
Employee misbehavior
Inefficiency
Increased costs
Unhealthy and unsafe work environment
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Disciplinary Guidelines
Make sure the evidence supports the charge of employee wrongdoing.
Ensure that the employee’s due rights are protected.
Warn the employee of the disciplinary consequences.
The rule that was allegedly violated should be related to the efficient
and safe operation of the particular work environment.
Fairly and adequately investigate the matter before administering
discipline.
The investigation should produce substantial evidence of
misconduct.
Rules, orders or penalties should be applied evenhandedly.
The penalty should be related to the misconduct and employee’s
past work history.
Maintain the employee’s right to counsel.
Don’t rob an employee of his/her dignity.
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Employee Perspective
The employees have the right to know what is expected of them and
what are the consequences of not fulfilling those expectations will be.
Was the employee aware of what he/she fell short of what the
employer expected.
Certain offences are contrary to acceptable conduct that discipline is
readily accepted or justified upon review regardless of whether there
was any prior communication or warning to the employee.
Theft
Intentional destruction of company property
Total refusal to perform safe work
Gross or intentional endangerment of the safety of coworkers.
Excessive absenteeism is another factor that can lead to termination
only after a series of lesser penalties.
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Ethics
Four elements emphasized in ethical thinking programs.
1. respect the customs/rituals of others
2. think of yourself and the organization as a part of the larger society
3. try to evaluate a situation objectively and evaluate the anticipated and unintended consequences of each possible action
4. consider the welfare of others as much as is feasible
If an employee adheres to these ethical principles then there is no need for any disciplinary actions.
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Discipline Process
A fair and just discipline process is based on three pillars:
1.Clear rules and regulations
2.A system of progressive discipline
3.An appeals process
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Basic Elements Of Progressive
Discipline
Each situation is unique and might call for different actions and steps!
Progressive discipline should be implemented through:-
Informal feedback (Verbal warning)
Letter of counsel (Written warning)
Letter of reprimand
Suspension (final warning)
Termination
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Finally…To conclude...
Make your expectations clear
When you see initiative and self-discipline in action, fanthe flame
Treat the people you employ as if they are adults, whichthey are.
Spend time meeting with staff members regularly
Severe discipline procedures may back fire.
Make all policies and procedures available to all employees.
Encourage open communication between you and the people whoreport to you.
Human beings prefer to follow their own doctrines- thereforemanagement should be aware that difficulties may crop up andshould formulate friendly implementation of policies.
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3 things you have learnt today
2 things you are not sure about
1 way you can link what you have done today to your work place
Wrap UpWrite Down
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Learn Unlearn Relearn Evaluation
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Please rate the following aspects of the course
excellent good not good poor
1. Organisation & domestics
2. Content
3. Notes
4. Presentation
5. Overall enjoyment
Any other comments
Course Date Name