UNDERPERFORMANCE = MISCONDUCT?

UNDERPERFORMANCE = MISCONDUCT?

It is important for the company to properly distinguishing between misconduct and underperformance especially so in the event whereby the company is likely to dismiss the employee for this reason. 

Misconduct is defined in the case of Holiday Inn, Sarawak V Puan Elizabeth Lee Chai Siok [1990 2 ILR 262 as improper behaviour, intentional wrongdoing or deliberate violation of the rule of standard behaviour. A workman has certain express or implied obligations towards his employer. Any conduct inconsistent with the faithful discharge of his duties or any breach of the express or implied duties of an employee towards his employer except trifling nature would constitute an act of misconduct.

Underperformance, on the other hand, is the inability of the employee to meet the standards or KPI set by the Company due to lacks of the required skill, knowledge or training, or the employee is unsure of what is expected of them.  The court in the case of Rooftech Sdn. Bhd. v. Holiday Inn Award No. 166/86 held that inefficiency which discloses a course of negative conduct no doubt is a sufficient ground for termination but there must necessarily be sufficient proof that a procedure has been followed. Ordinarily, there must be sufficient written communication to the claimant in order to establish inefficiency or poor performance before the company can rely on it to justify dismissal. 

THE RIGHT APPROACH

If an employee has committed misconduct, the company should conduct a disciplinary process which involves a number of steps i.e.:

  •  Investigate the complaints or allegations
  • Decide whether there is sufficient evidence to take disciplinary action against the employee concerned
  • Provide an opportunity for the employee to explain and defend himself
  • Decide whether or not the employee is guilty
  • Impose an appropriate punishment

When it comes to poor performance, it is important for the employer to be very slow in dismissing the employee found to be unsatisfactory in his performance or incapable of performing the work which he is employed to do without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility of likelihood of dismissal on this ground and giving him an opportunity of improving his performance. It is for the employer to find out from the employee why he is performing unsatisfactory or warn him that if the persists in doing so he has to go. PIP is a simple document which lays down where an employee is falling short and ways to improve. The PIP should include the following:-

  • Specific Shortcomings Must Exist and Detailed
  • The Duration of the PIP
  • Setting Realistics KPI and objectives
  • Identify the cause for underperformance
  • Consistent Reviews and Feedback

Henceforth, the company approach to these two common issues faced by the employer when it comes to employee management is important as a wrong move from the company may lead to a successful unfair dismissal case. 

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