Employees, be careful of these 3 things that could get you terminated from your job

Employees, be careful of these 3 things that could get you terminated from your job

bifpflAs an employee, we don’t expect to get the boot and get dismissed from our bosses. We strive to shine and excel in our career. While Malaysian labour law does prevent employees from being fired without a good reason, this does not mean that employees are ‘invisible’. You got to really watch your back and here are the 3 main things that your boss may legally use to fire you:

1)  Misconduct

Misconduct is a term used to describe an action or a conduct which negatively affects an employee’s duty towards their employer. However, do take note that not all misconduct equals to immediate termination. This is because, in the event of dismissal, the employer must establish, among other things, that the misconduct committed was sufficiently serious to support and justify the dismissal performed on the employee.

Here are some of the examples of misconduct that could lead to an employee’s termination:

  • Insubordination or intentional noncompliance
  • Fraudulence and cheating
  • Sleeping on the job
  • Sexual harassment
  • Absence from work without leave or consent
  • Sending inappropriate e-mails
  • Conflict of interest
  • Criminal offences such as stealing, assault or bribery
  • Being under the influence of illegal drugs at work (intoxication)

Termination for misconduct is even possible even if it occurs outside the workplace or after working hours, particularly if the misconduct causes damage to the employer’s business and reputation.

Again, we need to emphasized again that the employer must establish that the misconduct committed was sufficiently serious to justify dismissal.

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2) Poor performance

Poor performance here means that your employer felt that your work, work performance, quality of your work or the standard of your work is not up to par.

There are many different ways to describe poor performance, for example:

  1. Incompetence
  2. Inefficiency
  3. Inaptitude
  4. Negligence

The way to gauge an employee’s performance varies depending on the employer’s personality, requirements of the jobs VS the employee’s skill, knowledge, experience and expertise. The employer can establish the ideal benchmark as a mean to measure the employee’s performance but it must be backed by the company’s previous track records and without any bad faith or ‘mala-fide’. A common ‘foul-play’ which we’ve observed is that the employer has the ill-intention to get rid of the employee on the pretext of ‘Poor Performance’ by setting an unreasonable goal or target which the employee finds it impossible to achieve.

In 2014, a total of RM 28.1 million has been paid out to employees as compensation for various types of wrongful dismissal claims. Cases pertaining to Poor Performance recorded the highest claims among others. (Source: Ministry of Human Resource (MOHR) & Industrial Court of Malaysia)

An employee’s performance can therefore be measured based on a combination of variables such as actual performance, values, suitability, aptitude, conduct, behaviour and even mannerism.

As the above factors are extremely subjective, the law does require employees to have been notified of their shortcomings and to be given sufficient opportunity to improve before they are terminated.

One famous myth that we find a lot of people have (both employers and employees) is that given 3 warning letters does not equate to termination for poor performance or even misconducts. There is no such thing under the Malaysian labour law.

3) Redundancy / Retrenchment

Employers have the right to restructure their business to achieve maximum efficiency. At times, this involves terminating existing employees who are considered a surplus to the business requirements.  Sometimes, the role of an employee is made redundant. This simply means that their role or position is no longer needed. Most companies would opt for a leaner department while achieving maximum output of productivity by trimming the excess headcounts.

Here are some examples for your reference:

  • Closure of a specific department or branch
  • Significant reduction of turnover or profits
  • Reduced productivity
  • Escalating expenditures due to adverse economic climate or business conditions
  • The role still exists, but can be done by fewer workers
  • Duplicity of work or rationalization of functions

An employee is said to be “retrenched” when their role is identified as redundant and no longer required by the business.

The law requires employers to have a legal basis and justification to carry out the retrenchment exercise, and this includes having an objective and fair selection process for identifying employees to be retrenched.

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