Employee Discipline and Misconduct Dhananjaya Jayakody Management is the process of efficiently getting activities completed with and

through other people. The Management process includes planning, organizing, leading and controlling activities that take place to accomplish objectives. Any definition on Management generally includes goals, limited resources and people. In the above definition goals are implied in getting activities completed limited resources are implied in efficiently and people are implied in with and through other people (De Zenso and Robbins). Every organisation includes people. The people factor is considered to be the most valuable out of all the other resources. Acquiring people, developing their skills, motivating them to exert a high standard of performance or behavior and to have their commitment to the achievement of organisation goals are considered as some of the main functions of Human Resource Management. This is also identified as obtaining the services of people, preparing them, activating them and retaining them. The topic under discussion is also about, activating and retaining or not retaining people in the organisation. The standard of performance the company expects from the worker is Discipline. Performance is also a kind of behaviour. A kind of behaviour that is expected by the organization. If this expected behaviour is not up to the standard expected by the organisation, it is difficult to achieve its objectives. Assume that employee performance is a function of his skill and motivation. (P = S X M). The expected performance could be achieved through improving either the skills through training and development or through increasing the motivation off the employee . Perhaps through combined increase of the two. It generally works .But there a exceptions to the rule. Some workers will not provide the accepted behavior even if they have the skill and motivation. Then an external disciplinary force is used to influence the employee to behave in a accepted manner. Eg. An employee who is habitually late (a behaviour which is not accepted) is punished (external disciplinary force), so that his behaviour is modified. This is an issue that involves discipline, misconduct and punishment. Attracting and retaining the right persons to the organisation is important to Human Resources Management. Similarly retaining only the right persons in it is also equally important. What is meant by the right persons in the present context are people who are committed to the organizational goals. People who observe its rules and regulations, standards, norms, people who comply with the culture of the organisation, and behaves in a manner expected by the Organisation. Those who cannot do so needs to be reformed, through positive disciplinary actions. Failing which they need to be even terminated from service. Having the right kind of people, in the right number, in right places, at the right time to efficiently and effectively accomplish the tasks allotted to them in order to achieve objectives is part of Human Resource Planning (HRP). Similarly, reforming and / or rejecting the wrong people is a function of Human Resource disciplinary control. And also part of the control function of management (see P.O.M.C approach to mangement)

Some of the employees in an organization behave themselves. They voluntarily offer the expected standard of behaviour or performance. They are self disciplined; They behave in a responsible manner. They are the majority. But as opposed, these right kind of people we also have a minority of the employees who misbehaves and create disciplinary issues to the management, eg. they are habitually late for work, they are absent without authority or in excess of their leave entitlement, they quarrel and abuse their fellow workers, they even might be under the influence of liquor during working hours, they may disobey and ignore the action of the superiors and break safety regulations. They basically behave contrary to the expected behaviour. These we call breach of discipline, a wrong, misconduct, violation of rules, etc. For our purpose we will be using the term misconduct. Misconduct also means bad behaviour, mis behaviour, and wrong doing The standard behaviour expected by an employee is generally found in the letter of Appointment, Disciplinary Code Employee Hand book Notices Circulars Memos etc. In the case of Sri Lankan Ports Authority Vs Balin Silva A workman was absent on 3 earlier occasions and duly warned and punished in terms of the Circular. He was terminated. The L.T. held that it was two harsh a punishment and that the Circular was enforced discriminately. The Court of Appeal found no grounds that the Circular was applied discriminately and termination was up held. Court of Appeal held that the Circular should be strictly applied in order to maintain discipline among such a large group of employees. There were around 15, 000 employees. Like in the above case a circular lays down the rule. It is given in black and white. written These are expressed standard of behaviour or performance. But there are also, unwritten or implied standard of behaviour expected by an employee DISCIPLINE The word discipline is synonymous with the words regulation, order, control, restraint, obedience and authority. Discipline is simply good behaviour. A situation where there is no issues, disordered, chaos, confusion, disobedience, misconduct etc. It is the expected standard of behaviour of employees, which is required for an organisation to function in an orderly and legal manner. Discipline can also be identified with orderly conduct of employees or the behaviour according to the performance rules of the organisation. The most suitable definition would be the conduct, expected by the organization ( Silva 1995) An organisation expects a certain manner of behaviour from their employees. The organization expect the workers to act according to the rules and regulations of the Organization. The term discipline refers to a condition in the organisation. When employees conduct themselves in accordance with the organizations rules and standards of acceptable behaviour. ( De Cenzo and Robbins 1999)

Some refer Discipline as the practice of controlling the employees through strict laws and punishing them when they are violated. Others identify it as a method of encouraging employees to behave in accordance with the standards created by the organization Discipline is also identified as training that is used to have organisation regulations enforced. A rule in the context of our topic means official instructions given by the organisation as to what an employee should do and should not do. Eg. Work should commence at 8.15 A.M. daily (desired behaviour, should do) smoking is prohibited within factory premises (undesired behaviour, should not do ) one writer has attributed such a behaviour as Sensible behaviour . He points out that objective of discipline is to encourage workers to behave in a sensible manner. There are many reasons why we should have discipline in an organization .It is required among other things for smooth and efficient functioning of an Organisation, to preserve organizations rules and regulations which are made to achieve objectives. It is also needed to regularize the behaviour of the employees. The judge in the case of The Ceylon General Workers Union Vs Wellawatte Spinning and Weaving Mills Limited observed that I quote I consider a quarrel among workman a serious matter and deserves the highest reprimand . If workman cannot settle their affairs peacefully it will eventually end in a breakdown or at least destruction the smooth flow of work in the work place As a part of the controlling function in Management, for the health and safety of workers. To build a mutual co-operation amongst workers., To co-ordinate different departments of the Organisation, To effectively use Human Resources. Some Concepts related to discipline There are certain concepts that helps us to take decisions in relation to discipline Employee Disciplinary Management (EDM) A systematic process of planning, controlling in influencing all employees in the Organisation to achieve and maintain a standard of behaviour, in order to accomplish organizational goals and objectives. It is the systematic procedure of creating, promoting and maintaining employee discipline so that goals and objectives of the Organisation are accomplished. EDM includes the entire process from creating rules and regulations to finally punishing as and when it is required. The process has 8 steps. This is a novel concept introduced to administer discipline effectively The objectives to be achieved through the EDM should be determined with a policy statement. Then the rules and regulations expected to be complied by employees should be created, together with a particular reason for having such a rule, it is important to have the employees involved as well. Then the punishment for each rule violation and the disciplining authority should be decided. Once this is done it should be communicated to the workers. Thereafter disciplinary violations are to be monitored there after. When there is a violation, first you should see whether it is a minor or grave

violation. If it is a minor violation, progressive discipline methods should be applied with counseling and informal discussions. If it is a serious violation, have a disciplinary investigation and see whether the rule violation is true and the reasons behind it and finally decide on a punishment. Entire EDM process should be reviewed and renewed from time to time. Preventive Discipline This is a discipline intended to prevent any rule violation. A proactive approach. Thebefore situation. The idea is to create a self-discipline among the employees and thereby promote them to behave in the manner expected by the Organisation. This is like preventing an accident or a fire. Important features in this concept is creating employee awareness and have the employees participation when rules, regulations and standards are created . HR Department can help to create awareness through various communication mechanisms, and also organizing training programmes. They also can create a preventive disciplinary culture are some areas HR could get involved. Corrective Discipline This is a disciplinary action taken after a breach of a discipline or a misconduct is committed. This is a discipline intended to remedy and prevent any future rule violation. A reactive approach. Theafter situation. The idea is to prevent such a breach happening in the future and to provide the employee an opportunity to correct his behaviour. This is like fire - fighting or treating the injury after an accident. This is used a an external disciplinary force to modify behaviour or to obtain the desired behaviour. There is basically two approaches to punishment. Positive Approach The punishment is not personal. It is focused on the misconduct. It rejects the misconduct not the employee. The idea is to reform the workers on the presumption that employees are bound to make mistakes and that it is a common occurrence. This approach to punishment is considered the way forward or the ideal in terms of Human Resource Management. Negative Approach The punishment is personal. It is focused on the employee and rejects him/her not the misconduct. The idea is to get revenge, create unpleasantness to the workman, humiliate and victimize him. This approach goes on the presumption that employees should not commit any breach of discipline. This approach to punishment is not encouraged from a Human Resource Management point of view. It creates undesired effects such as conflict, absenteeism and apathy. Hot Stove Rule The in sight gained from this rule is widely used in employee discipline management. The end result of a person touching a Hot Stove and an employee being reprimanded is the same. it has the has the same effect. It will hurt .By observing the after effects of touching a hot stove , on can learn certain important principles that could be adopted for EDM When one touches a Hot Stove, the result is instant it burns. People know that if one touches a Hot Stove he /she burns up. This is a warning. The result of touching a Hot Stove does not change From time to time there is a consistency of the result, i.e.

each time it is touched, there will be burning. Further the degree of the burn depends on the duration you keep touching it, finally the result is not personal. However, touches get burnt irrespective of, gender, age or statues This principle when applied to the disciplinary management process would mean that, punishment following an act of misconduct should be instant. So that offender could relate the punishment to the offence, (if not he may even forget why he is punished as the time period between the misconduct and punishment widened) Employees must be warned about the rules/regulations/standards to be observed and the punishments they will receive. Communication of these are very important. There should be consistency in punishment. Similar offences should be punished. Similarly, if a person is charged with unauthorized absence, on three occasions, he should be dealt with on all three occasions, rather than skipping the first and the last, and only punishing the second offence, it will give wrong signals to the workers, especially if two employees commit the same offence, punishment should also be the same. Degree of the punishment should be in terms of the gravity of the offence. Finally, punishment should not be personal, irrespective of the person, age, seniority and the status in office. . In the case of The Ceylon Plantation Workers Union Vs Superintendent Baddegama Estate it was held that (Our courts have repeatedly held) the fact that an employee occupies an important position in his union doesnt entitle him to any immunity from punishment or different treatment in the matter of punishment Progressive Discipline This is where, initially, a lenient punishment is specified and thereafter if the rule violation is continuing gradually, increasing the punishment, in order to correct the offender e.g. first warning, second warning, final warning, termination . This sought of punishment is specified for minor offences. The employee is given an opportunity to correct his behaviour. Counseling Approach for Discipline Without immediately punishing the employee, one tries to identify the causal effect of the violation of a rule and then remedy such situation. Here, advising, counseling techniques are made use of. For example, if the causal effect of an employee being late for work regularly is due to transportation problem. Initially, the Company could take steps to provide transport. If the causal effect of a minor worker been absent is an abusive supervisor, try to relocate one or iron out the misunderstanding. Sandwich Model This is a tool used in constructively criticizing a worker, so that it would be better accepted. The structure is like in a sandwich. You communicate an undesired behaviour pattern in between communicating two desired behaviour or good behaviours pattern e.g. An employee gets late after meals and it disrupts work . Instead of criticizing the bad behaviour on the first time you could say

Eg Your punctuality is excellent (positive statement/criticism ), but you always report 15 to 30 minutes late after the lunch break that affects our operation (Negative statement/criticism). if not you are our most productive worker (Positive statement Criticism). MISCONDUCT The word Misconduct is synonymous with the words ,Misdemeanor, delinquency ,transgression bad behaviour, misbehaviour, and wrong doing stc As per the case of Shalimar Rope Works Mazdoor Union Vs. Shalimar Rope Works Ltd. repotted at (1953) (z) LLJ 876. An act should be regarded as an act of misconduct if it is inconsistent, with the fulfillment of express or implied conditions of service or if it has a material bearing on the smooth and efficient working of the concern Why does a person misconducts him or her self? It could be economic, environment reasons .Also it could be due to a persons natural inclination to misconduct, due to unsuitable working conditions, bad management (de Silva ) Amarasinhghe in his resent publication titled conflict at work states that causal factors for conflict includes talking has not helped in the past, talking has been slow and a finalization of a solution slowed down, past experience can be the cause of a dispute, deviation from past practices, breaking the point of tolerance, external environment, denial or neglect of known issues, example a manager is rude and abusive to his subordinates over a period of time and there have been many incidents reported but the management does nothing to check the situation) sudden provocation, poor behavioral and interpersonal skills, refusal or failure to share information, conflict of interest or values, psychological reasons, individual styles, disorganization, selfish interest, ulterior motives or malicious intent, disparity in relative skills, etc conflict if not resolved lead to misconduct. A Misconduct may arise in relation to either Attendance, On the JOB behaviours. Dishonesty, or Out side activities. A misconduct in one organization might not be a misconduct in a another. Hence it is difficult to list a complete list of misconducts. The Ecode specifies and defines certain acts of misconducts but states I quote but this definitions should not be treated as a comprehensive list of offences. It will also not preclude the sate in taking action against an officer for any other offence not covered by these definitions, But there are instance where the labour tribunal through judgments identified certain acts as misconducts. These judgments identify Absence and Late Attendance, Negligence, Disobedience, Abuse, Assault, Dishonesty and Drunkenness. Apart from these the certain regulations issued under various laws. For eg. according to the regulations issued under Wages Board Ordinance No. 27 of 1941 there are offences for which a fine of 5% could be levied. Similar Provisions are found in the SOE Act.

Similarly there are separate misconducts laid down as applicable to co-operative workers. All these misconduct over lap each other. However all these they could be slotted in to the disciplinary problems arising from Attendance, On the JOB behaviours. Dishonesty , Out side activities. The following definitions are from the E-Code and you could relate them to the four main sources Inefficiency may or may not arise from a lack of competence. It consists of failure due to indifference, inadvertence or other defects on the part of an officer to discharge the duties expected of him to reasonable standards. (see how it relates to On the JOB behaviours ) Incompetence arise from lack of the intellectual, temperamental, physical or other qualities that an officer is presumed to possess or to have developed for the efficient discharge of his duties, considering his position, seniority, the level of responsibility at which he functions, his age, experience, the qualifications normally stipulated for recruitment to the post he holds, etc. It could be technical, professional or administrative incompetence, or incompetence in the handling of staff, labour, or other personal relationship in his office. ( see how it relates to On the JOB behaviours) Negligence is a neglect of the duties entrusted to him and would cover such matters as errors and mistakes arising from a lack of care or diligence, failure to supervise programmes, staff, etc., to ensure that public funds are not wasted or public property damaged. ( see how it relates to On the JOB behaviours ) Lack of Integrity relates to acts or omission arising from motives of improper personal gain, fraud, cheating, theft, forgery, dishonesty, concealment of the truth or portions of the truth in writing reports, suppression of documents or facts, bribery, the use of his official position or the exercise of his official functions for his own private advantage or the advantage of his friends or relatives; the use of public property or the services of subordinates for private purposes; acceptance of gifts or favours from members of the public or firms with whom an official dealings or on whom he is in a position to bestow some present or future favour; any act which brings his private interest into real conflict with his official duties. ( see how it relates to On the JOB behaviours/ Dishonesty) Improper Conduct when connected with official duties, relates to such matters as the betrayal of confidence enjoyed officially; acts of indiscretion in the place of work, or outside the place of work but in relation to an officers subordinates; speaking in public or publishing articles on matters in which the officer is prohibited from expressing opinions in public; engaging in political activities where he is prohibited from doing so; inciting his subordinates to disloyalty; doing anything that might seem to compromise his official position or any other act which demoralizes the Public Services or bring the Public Services or the office he holds into disrepute; any act which appears to bring his private interest into conflict with his public duties even if the conflict is not in fact real. Improper conduct not connected with his official duties relates to such matters as habitual drunkenness, use of narcotic drugs, disorderly behavior in public places, immorality of a type that becomes a public scandal or any other act which brings the Public Services or

the office he holds into disrepute. ( see how it relates to Dishonesty, or Out side Activities ) Indiscipline relates to such matters as unpunctuality, refusal to carry out order, rudeness whether to his superiors, subordinates or members of the public, drunkenness when on duty, use of narcotic drugs, leaving office without permission etc. ( see how it relates to On the JOB behaviours and Attendance) Misconduct From the case law (pl see pp 31-117 of Law of Dismissal by S.R. De Silva ) Absenteeism becomes a misconduct when it is habitual and without authority. In the case of All Ceylon Commercial and Industrial Workers Union VS General Industries Limited it was held that chronic absenteeism strikes to the very root of production , and employer cannot reasonably expected to tolerate such behavior beyond certain point . In the case of Bawa Crockery House Limited Vs Bhoumik the courts held that We fail to see how the absence of the workman for half a day without justification can be regarded as either as a gross breach of discipline or gross neglect. Absent from work for a short period is not a misconduct. It has to be habitual and continues. Late attendance Perera Vs The Insurance Corporation of Ceylon it was held that Repeated Unpunctuality is serious breach of duty Negligence , in the case of Lever Bros Eksath Kamkaru Samithiya Vs Lever Bros (Ceylon) . The Supervisor in charge of certain machinery was found sleeping on duty at his work station. The machines should be attended to all the time if not there could be serious damage caused to the workers and property. The supervisors conduct was considered as an act of negligence . Disobedience, It was held in Premadsa Rodrigo Vs Ceylon Petroleum Corporation The person issuing a relevant order must have the authority to do so ,if not there can be no disobedience .Order must be clear, positive and unambiguous. It was held in Equipment and Construction Company Vs Cooray that Refusal to obey reasonable orders is a misconduct Abuse , In the case of Wanija Ha Karmika Sewaka Sangamaya Vs Ceylon Glass Company Hooting ,jeering and humiliating an executive is a misconduct . Assault, In the case of Piyasena VS Battaramulla Talangama Town Council it was held that Assaulting a superior officer even outside the premises and out of working hours is a grave misconduct in the case of Ceylon Mercantile Union vs M.D.Gunasena and Co Ltd., it was held that Assaulting a fellow employee is misconduct Dishonesty

It was held in the case of The CMU vs M.D. Gunasena and co limited alteration of a medical certificate amounts to misconduct in the case of Nidahas Karmika Saha Velanda Sevaka Vurthiya Samithiya vs K.W. Susiripala it was held that Diverting the employers customers to a business rival was misconduct. In the case of The CMU Vs The British Electric Co Ltd it was held that Conspiracy to ruin the employers business, is misconduct . In the case of Charted Bank of India Vs Patel it was held that disclosing confidential information relating to the employers business, was a dishonest act. Drunkenness. It was observed In the case of Cloustan & Co Limited Vs Corry The intoxication may be habitual or gross and directly interfere with the business of the employer or the ability of the servant to render service. Or it also could be an isolated act committed under circumstances of festivity and in no way connected with or effecting the employers business , hence it depends on the question of fact . In the state sector consumption of liquor in violation of a circular has been held as a serious misconduct GRAVITY OF THE MISCONDUCT The punishment for misconduct depends on the gravity of the offence. An offence or a misconduct could be simple or grave , not serious or serious. Minor or major . This is important because it helps the management to take decisions eg a grave act of misconduct may warrant immediate suspension from service or Termination. The Courts have held that the gravity of the offence depends on .. Position held by the employee In the case of H.G. Jayasekera vs The Ceylon Transport Board, a Conductor attempted fraud of Rs.1.40. The Court, taking into consideration the nature of the business which was transporting people for money and the employees position, the Court held that as such the employee, being the conductor who is in charge of collecting the money should act honestly. Hence, this was considered a grave act of misconduct. The Nature of the Business In the case of Ceylon Mercantile Union vs Bartleet and Company, the employee was found trying to remove 16 ounces of tea. The Employees Union was going on the basis that, as the quantum is small, it is not a grave act of misconduct, but the Court held that the nature of the business was producing tea and what the employee stated was the main produce. Hence, it was a grave act of misconduct. In a similar case LEWU vs The Superintendent Glen Alpin Group an employee who has worked for 36 years was terminated for having take 5-6 ounces of tea without the employers permission. The Establishment Code E-code states that the seriousness of the misconduct must be judged not only by the Act itself but in relation to the office held by the person concerned and the circumstances surrounding it (p.66 Vol. II). Similarly according to regulations applicable to co-operative workers, there is a category of breach of discipline considered as grave.

THE ASPECTS TO BE COVERED BEFORE DISCIPLINARY ACTION IS INITIATED Needless to say, if there is a breach of discipline, there has to be some sort of a punishment. As discussed earlier, this is part of the preventive discipline. This could be either through the positive approach or adopting a negative approach. But before taking any disciplinary action, certain contingency factors are recommended to be followed in order to have a fair and equitable disciplinary practices. If not at a later stage the labour courts may reverse the decision on the same grounds In Jeewandarage Dayawathi Vs Pugoda Textiles Limited the workman a Machine Operator was dismissed for thieving 03 pieces of cloth and her services were terminated. Though the theft was established the Tribunal took into consideration her period of service ( 8 years ), the first act of misconduct, negligible value of the pieces of cloth. The workman was a cancer patient undergone surgery on several occasions . At the LT she was reinstated without back wages on one year probation. High Court reversed the decision of the LT, but the Supreme Court restored the order of the LT. This shows that the our courts take in to consideration various factors to see whether a punishment was justified . Hence a prudent employer should approach a disciplinary problem having the following it in mind 1. Seriousness of the problem eg Dishonesty is usually considered most serious than reporting to work 20 minutes late. 2. Duration of the problem eg. The first occurrence is usually viewed differently than the 3rd or 4th offence. 3.Frequency and nature of the problem Eg. Is there a pattern in the occurrence which could be identified 4..Employees work history Eg. How long, quality of the service, does he have a strong track record, period of service in the organization. Good and bad 5.Explanatory factors Eg. A person who gets late to report to work on a particular day due to his child being ill should be dealt with leniently than a person who is late due to over sleeping 6.Degree of Socialization Eg. Does the employee know the rules and regulations, is he comparatively a new employee who has had not the time to familiarize with the rules and regulations. Has the management made an effort, create awareness 7.History of the organizations discipline practice Eg. Equidity demands consistency against some relevant bench mark

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8.Implication for other employees Eg. There is little point to taking a certain action against the employee if it has a dysfunctional affect on others in the Unit 9.Management backing Eg. If the employees decide to take case to a high level in management will you have reasonable evidence to justify your decision PUNISHMENTS A punishment imposed should not be shockingly disproportionate in the light of the particular conduct and the employees past record or is such that no reasonable employer would impose in similar circumstances . if so the courts will interfere with the managements decision. Sri Laxshmi Saraswathi Motor Transport Co VS Labour Court. A workman who was an office bearer of a union had 17 years of service and a clean record. One day he was found guilty for the delay in transmitting some documents from the employers branch office to the head office and he was dismissed. The worker admitted that it was his fault but said that it was due to forgetfulness. The Court held that the punishment was grossly disproportioned with the misconduct. Punishments Oral warning, Written warning Fine or recovery of damages Suspension without pay Transfers Stop, reduce or delay wage increments Demotion Compulsory retirement Termination of service

REFERENCES
De Silava. S.R. Disciplinary Action & Disciplinary Procedure in the Private Sector - 1981

De Silva. S.R. Law of misconduct 2004 .

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