How To Guide: Manage Misconduct in Employment

How To : Manage Misconduct in Employment

Misconduct can undermine trust, disrupt team dynamics and affect the overall performance and reputation of an organisation. Maybe it is an employee who has a long history of absenteeism or someone repeatedly refusing to listen to their manager’s orders. It is vital for employers, managers and HR personnel to be equipped with a clear structured approach to address these situations fairly, promptly and consistently.

The Legal Requirement of Due Inquiry

When managing misconduct, the employer has to satisfy the requirement of due inquiry laid down in Section 14 of the Employment Act 1955. Section 14 provides that after due inquiry, an employer may impose the following punishments against the employee for misconduct.

i) Summary dismissal (dismissal without notice)

ii) Downgrading

iii) Impose any other lesser punishment as the employer deems just and fit.

Essentially, due inquiry means investigation on the part of the employer to ascertain and be satisfied that the employee had indeed committed the act of misconduct before meting out the punishment. It means there are merits to proceed with the disciplinary action against the employee.

Burden of Proof 

The burden of proving misconduct justifying dismissal lies on the employer who has to establish such conduct on the balance of probabilities. Proving misconduct on the balance of probabilities means that it is more likely than not that the employee has conducted the misconduct. For example, Employee A was accused of sexually harassing Employee B. The employer would have to prove with convincing evidence that it is more likely than not that Employee A has sexually harassed Employee B.

Steps to Manage Misconduct in Employment Effectively

Step 1: Preliminary Investigation

Once you receive a complaint or have identified that an employee has allegedly committed misconduct, the first step is to conduct a preliminary investigation. A preliminary investigation would consist of obtaining statements from key witnesses and the complainant, obtaining evidence and conducting interviews with the accused employee. The purpose of the preliminary investigation is to ascertain if there are merits for the employer to proceed with a disciplinary action.

Step 2: Suspension Pending Investigation

If a serious misconduct is alleged and if the Management does not want the employee to be on the premises while investigations are being carried out as the employee might disrupt the investigation, the employee can be suspended pending completion of the investigation.

The employee would be on half pay for the first two weeks of the suspension. Any extension beyond two weeks would be on full pay. 

Step 3: Show Cause Letter

Once you have completed your preliminary investigation and there are merits to proceed with a disciplinary action, the next step would be to issue a show cause letter to the accused employee. The purpose of the show cause letter is for the accused employee to provide explanation on the charges alleged against him. The key things that should be included in the show cause letter are:

1. The charges alleged against the accused employee (the facts of the alleged misconduct)

2. The duration given to the accused employee to reply to the show cause letter

3. The consequences if the accused employee fails to reply to the show cause letter.

Step 4: Accused Employee’s Response to the Show Cause Letter

There are four possible scenarios for a response by the accused employee to the Show Cause letter.

Managing misconduct doesn’t have to be complicated. By following these steps, you’ll have a clear and structured process to handle misconduct lawfully, confidently and with ease.