Employees' Right and Discipline PDF

EMPLOYEES’ RIGHT AND DISCIPLINE 1  1. Define and explain the importance of employee’s rights and discipline 2. Identify employee rights and employer responsibilities. CHAPTER 3. Explain the disciplinary policies and...

EMPLOYEES’ RIGHT AND DISCIPLINE 1  1. Define and explain the importance of employee’s rights and discipline 2. Identify employee rights and employer responsibilities. CHAPTER 3. Explain the disciplinary policies and procedures. OBJECTIVES 4. Explain the approaches to disciplinary action. 5. Identify the alternative dispute resolution procedure. 2  1. Various federal and state laws in protection of employment status guarantee fair treatment of employees by employers. 2. As employee rights continue to develop, employers will be required to assume greater responsibilities to employee by providing a safe and efficient workplace while providing safe and quality goods EMPLOYEE and services to consumers. RIGHT AND 3. Guarantees of fair treatment from employers, particularly regarding an employee’s right and PRIVACY privacy.  Federal Constitution  Employment Act 1955  OSHA 1996 3  1. To establish equitable set of guidelines and procedures for the administration and resolution of misconduct for all employees. 2. To establish relevant disciplinary procedure. EMPLOYEE 3. To encourage, promote and regulate RIGHTS discipline in the organization. 4. To signal to employees the level of expectation and standards of performance and behavior. 4  1. Federal and state courts generally view the privacy rights of employees as minimal. 2. There is a lack of comprehensive and consistent body of privacy protection, whether from laws or from EMPLOYE court decisions. 3. It is a matter of personal freedom from intrusion E PRIVACY (invasion) into personal affairs. ▪ RIGHTS Personal Data Protection Act 2010 regulates how personal data can be collected, processed and used 5  1. Failure to honor employee rights ▪ costly lawsuits, damage organization’s reputation and hurt morale. 2. Negligence  Is the failure to use a reasonable amount of care when such failure results in injury to another person or customers  Negligent hiring : Is a legal doctrine that places liability (duty EMPLOYER of care) on the employer for actions of its employees during RESPONSIBILITIES the course and scope of their employment. 3. Providing a safe workplace. 4. Guaranteeing safe, quality goods and services to consumers. 5. Reasonable care in the hiring, training and assignment of employees to job. 6. When employee rights and employer responsibilities clash, conflict can arise – Industrial actions (stoppage of work, strike) 6  1. No guarantee that jobs are property rights of employees. 2. However, employees have right to expect sound employment practices (fair and equitable) from employers. 3. Several legal considerations need to be observed JOB regarding job protection rights/security of one’s job (Employment Act 1955 – Contract of service, PROTECTION payment of wages) RIGHTS 4. Psychological contract ▪ Is the expectation of a fair exchange of employment obligations between an employee and employer ▪ Mutual agreement between employers and employees 7  Employment-at-Will Principle JOB PROTECTIO Constructive Discharge Wrongful Discharge N RIGHTS: LEGAL CONSIDERA Explicit Contract Implied Contract TION 8   Employment-at-Will Principle  The right of an employer to fire an employee without giving a reason and the right of an employee to quit when he or she chooses.  Limitations on Employment-at-Will EMPLOYMENT  Union collective bargaining agreements  Federal and state laws, court decisions, and AT WILL administrative ruling – restrict termination decision  Some employers have provided written policies that require good cause to terminate an employee, and most employers are cautious about terminating employees 9   Wrongful discharge – Employees’ contract of employment has been terminated by the employer; illegal, because terminating employees without ‘just cause’ WRONGFUL  Violations of Public Policy  Wrongful discharge of an employee by an employer for refusal to DISCHARGE: commit crime or an act that violates the law, illegal, unethical, unsafe practice or reporting criminal activities to government EXCEPTION authorities  Implied Contract S TO THE  Wrongful discharge contrary to an employer’s oral or written promises of continued employment (terms and condition of EMPLOYME employment). NT-AT-WILL  Implied Covenant  Wrongful discharge for a lack of fair dealing on part of employer DOCTRINE (an agreement between two or more parties to a contract, lack of fair treatment/adequate process followed during dismissal of employees). 10   An implied contract is when a promise by the employer suggests some form of job security to the employee.  Implied contractual rights can be based on either oral or written statements made during the pre- employment process or subsequent to hiring.  Telling employees their jobs are secure as long as they IMPLIED perform satisfactorily and are loyal to the organization CONTRACT  Stating in the employee handbook that employees will not be terminated without the right of defense or access to an appeal procedure  Urging an employee to leave another organization by promising higher wages and benefits, then denying on those promises after the person has been hired 11  Formal written agreements that grant to employees and employers agreed-upon EXPLICIT employment benefits and privileges. CONTRACT Employees can not be dismissed at will. Stating the period of employment, terms and conditions of employment 12   An employee voluntarily terminates his or her employment because of harsh, unreasonable employment conditions placed on the individual by the employer.  Employers cannot accomplish covertly what they are prohibited by law from achieving overtly – employer force the employee to CONSTRUCTI work under unfavorable work conditions VE  Courts have generally adopted a “reasonable person” standard for upholding constructive discharge claims – employees provide DISCHARGE – evidence that working conditions were intolerable to a ‘reasonable person’ ILLEGAL  Harsh environment – Long hours of working, inadequate pay EMPLOYEES incentive, prolong pressures on meeting quality work and datelines, inappropriate word/communication DISMISSAL  Thus, employers can be taken legal action for constructive discharge 13  1. In the event of closing the plant/ factory/ office, employer must give notice in advance to employees at least two (2) months notice. PLANT 2. Terminated employees must be notified CLOSING individually in writing. NOTIFICATIO 3. Failure to comply with the law can subject N employers to certain liabilities.  Back pay, fringe benefits etc 14  Employee Privacy versus Employer Obligations PRIVACY Substance Abuse and Drug Testing Searches and Monitoring RIGHTS Access to Personnel Files E-mail and Voice Mail Conduct Outside the Workplace Genetic Testing 15   Safety-Sensitive Jobs ▪ Employees must submit to a drug test when “reasonable suspicion” for a drug test exists and the employer’s testing procedures are also reasonable. SUBSTANCE ▪ Causes financial implication – safety risks, accidents, theft, benefit costs, productivity decline, performance problem. ABUSE AND  Drug-Free Workplace Act (1988) requires employers to: DRUG ▪ Issue a policy statement prohibiting drug usage. TESTING ▪ Inform employees about the dangers of drugs. ▪ List options available for drug counseling. ▪ Notify the federal contracting agency of employees convicted of drug-related criminal offenses. 16   The search policy should be clearly outlined in a firm’s employee handbook. The handbook should explain that searches will not be conducted without a compelling reason.  Searches of personal belongings (desks, lockers, toolboxes, EMPLOYEE workplace areas etc.) SEARCHES 1. When possible, searches should be conducted in private. AND 2. The employer should attempt to obtain the employee’s consent prior to the search. SURVEILLANCE 3. The search should be conducted in a humane and discreet manner to avoid infliction of emotional distress. 4. The penalty for refusing to consent to a search should be specified. 18   Camera Surveillance  Few federal laws protect workers from being watched  Phone Conversations and Text Communications  In general, employers have the right to monitor calls and text messages sent from their telecommunications devices, provided they do so ELECTRONIC for compelling business reasons and employees SURVEILLANCE have been informed that their communications will be monitored.  E-Mail, Internet, and Computer Use  Employers can monitor what employees do online and fire or discipline them based on that information 19  Employees generally have: ▪ The right to know of the existence of one’s personnel file ▪ The right to inspect one’s own personnel file ▪ The right to correct inaccurate data in the file ACCESS TO Employers can: PERSONNEL ▪ Restrict access to information that could violate FILE the privacy of others ▪ Limit the employee to copies of documents that he or she has signed ▪ Require that HR personnel, or a supervisor, be present while the employee views the documents 20 21   Off-Duty Employee Conduct  Organizations that discipline employees for off-duty misconduct must establish a clear relationship between the misconduct and its negative effect on other employees or the organization (wrongful acts that directly cause harmful effect to the organization) OFF-DUTY  Off-Duty Employee Speech  Some organizations have social networking and CONDUCT blogging policies that restrict employees from making disparaging remarks about their firms or its AND SPEECH supervisors, or otherwise casting their organizations in a bad light.  Workplace Romances  Supervisor – subordinate relationships are of particular concern 22 DISCIPLINARY POLICIES AND PROCEDURES 23   Organization Discipline Policies  The HR department is responsible for the development of the organization’s disciplinary policy.  It is also responsible for ensuring that the policy is administered in a fair and consistent manner EMPLOYEE throughout the organization. DISCIPLINE  Definition Of Discipline  Training that molds & strengthens desirable conduct-or corrects undesirable conduct-& develops self-control.  Treatment that punishes.  Orderly behavior in an organizational setting. 24 25   Conduct  Exercising behavior that is consistent with organizational expectations required in the workplace either voluntary or obligatory in order that work can be maintained. EMPLOYEE  Misconduct CONDUCT  Improper behavior that violates the standards rules of an organization. AND  Intentional / willful wrong-doing or deliberate DISCIPLINE (purposeful) violation of a rule or standard behavior.  Two (2) types of misconduct:  minor misconduct.  major misconduct. 26  Minor Misconduct Major Misconduct  Inefficiency.  Willful infringement of  Late coming to work. company rules and regulations. TYPES AND  Misuse of company  Disclosure/release and publications of confidential EXAMPLES OF equipment. information. MISCONDUCT  Going out to attend personal matters without informing  Fighting with other employees. supervisor.  Absent without leave / reasonable excuse.  Loitering, talking while  Habitual late coming to work. manning machines.  Not wearing safety equipment. 27  1. Lack of knowledge about jobs. 2. Emotional problems. 3. Motivational problems. CAUSES OF 4. Physical problems. MISCONDUCT 5. Family problem. 6. Interpersonal problems. 28 A Disciplinary Model (DM) Approaches to Discipline 29  1. The rules must be reasonable and relate to the safe and efficient operation of the organization. 2. The rules as well as the consequences for breaking them should be written down and widely disseminated to all employees. VIOLATION OF Neglecting to communicate the rules is a major reason disciplinary actions taken against employees are reversed. ORGANIZATIONAL 3. The rules should be clearly explained. Employees are more RULES likely to accept a rule if they understand the reason behind it. 4. Employees should sign a document stating that they have read and understand the organizational rules. 5. The rules should be reviewed periodically—perhaps annually— especially those rules critical to work success. 30 31 33  1. Date, time, and location of the incident(s) 2. Negative performance or behavior exhibited by the employee— the problem 3. Consequences of that action or behavior on the employee’s overall work performance and/or the operation of the employee’s work unit INVESTIGATION 4. Prior discussion(s) with the employee about the problem OF EMPLOYEE 5. Disciplinary action to be taken and specific improvement OFFENSE expected 6. Consequences if improvement is not made and a follow-up date 7. The employee’s reaction to the supervisor’s attempt to change behavior 8. The names of witnesses to the incident (if appropriate) 34 35   Conduct of an Interview before any disciplinary action initiated  Concentrate on how the offense violated the performance and behavior standards of the job. DISCIPLINARY  Avoid getting into personalities or areas INTERVIEW unrelated to job performance.  Give the employee must be given a full opportunity to explain his or her side of the issue. 36   Progressive Discipline  Oral warning, written warning, suspension, terminated  To motivate employees to correct his or her behavior  When applying corrective measures by increasing degrees, always be sure that employees:  Know where they stand regarding offenses.  Know what improvement is expected of them.  Understand what happens next if improvement is APPROACHES not made. TO  Positive, or Non-punitive, Discipline  Employees must be responsible for their personal DISCIPLINE conduct, performance and careers  Supervisor-employee in joint discussion to resolve performance issue  Discipline that focuses on the early correction of employee misconduct, with the employee taking total responsibility for correcting the problem.  Discussion and problem solving approach 37   The Hot-Stove Approach  Provides early warning – extremely important to provide advance warning that punishment will be taken due to unacceptable behavior.  Burns immediately – it must occur immediately so APPROACHES that the individual will understand the reason for it. TO  Gives consistent punishment – it should be DISCIPLINE consistent whereby anyone who performs the same act will be punished the same way.  Burns impersonally – it should be impersonal without favoritism. 38  Improper Behavior Yes Does this violation warrant No No Disciplinary Action disciplinary actions? Yes Does this violation warrant more No Progressive than an oral warning? Oral Warning Discipline Yes Does this violation warrant more No Written Warning Procedure than a written warning? Yes Does this violation warrant more No Suspension than a suspension? Yes Termination 39 Positive, or Non-punitive, Discipline 40   An employee’s right to present his or her position during a disciplinary action. 1. To know job expectations and the consequences of not fulfilling those expectations. 2. To consistent and predictable management DUE action for the violation of rules. PROCESS 3. To fair discipline based on facts, to question those facts, and the right to present a defense. 4. To appeal disciplinary action. 5. The right to progressive discipline. 41   The Principles of Natural Justice should be practiced at all situations: ▪ Nemo Judec In Causa Sua (The rule against bias).  No one to be judge in his own cause (no person can judge a case in which they have an interest, the authority deciding the matter should be free from bias) ▪ Audi Alteram Partem (The rule requiring a fair DUE hearing). To hear the employee’s side that PROCESS includes:  Worker has the right to know what he is accused for.  No one should be condemn unheard.  Worker must be given time to reply for accusations.  An unbiased party must be conduct the inquiry. 42  1. Come to the point within the first two or three minutes, and list in a logical order all reasons for the termination. 2. Be straightforward and firm, tactful, remain resolute in your decision. 3. Make the discussion private, businesslike, and fairly brief. 4. Don’t mix the good with the bad. Trying to sugarcoat the problem sends a mixed message to the employee. INFORMING 5. Avoid making accusations against the employee and injecting personal feelings into the discussion. THE 6. Avoid bringing up any personality differences between you EMPLOYEE and the employee. 7. Provide any information concerning severance pay and the status of benefits and coverage. 8. Explain how employment inquiries from future employers will be handled. 45   “ADR”  Different types of employee complaint or dispute-resolution procedures used to meet employees’ expectations for fair treatment in the workplace while guaranteeing them due process. ALTERNATIVE  ADR Procedures  Step-Review Systems DISPUTE  Peer-Review Systems RESOLUTION  Open-Door Policy  Ombudsman System  Mediation  Arbitration 46  Open-Door Policy  A policy of settling grievances that identifies various levels of management above the immediate supervisor for employee contact.  Vice president, president, chief executive officer  Managers’ office door should be open to every employee – employees are allowed to contact various managers to solve complaints or grievances 47  Step-Review System  System for reviewing employee complaints and disputes by successively higher levels of management. 48  Peer-Review System ▪ A group composed of equal numbers of employee representatives and management appointees. ▪ Functions as a jury since its members weigh evidence, consider arguments, and after deliberation, vote independently to render a final decision. 49  Mediation  The use of an impartial neutral help employees and managers to negotiate and to reach a compromise decision in employment disputes  Less focus in Malaysia, although we have Mediation Act 2012  Mediator; A third party in an employment dispute who meets with one party and then the other in order to suggest THIRD PARTY compromise solutions or to recommend concessions from each side that will lead to an agreement; mediators have no DISPUTE power to force either side toward an agreement RESOLUTION Arbitration  The use of an impartial neutral party as decision maker to resolve an employment labor dispute by imposing a binding final decision on all parties involved in the dispute.  Arbitrator: Third-party neutral who resolves a labor dispute by issuing a final decision in the disagreement. 50   Types of cases arbitrated by the Industrial Court (Industrial Relations Act) (1994-1998)  Termination  Constructive  Misconduct ARBITRATO  retrenchment R  Non termination  Amendments of collective agreements  Collective agreement (terms and conditions of employments) 51  Ombudsman System  The word “ombudsman” is derived from the Swedish word meaning “grievance person” or “representative or agent of the people”. It is also referred in the Oxford Dictionary as the “people’s defender”, and he or she is appointed to safeguard citizens against abuse or misuse of administrative power by the executive.  A designated individual from whom employees may seek counsel for the resolution of their complaints.  Is an advocate for a fair process, not an advocate on behalf of individuals or the institution.  Does not have the power to decide or to overrule a decision, but can confidentially seek an equitable solution between the employee and the supervisor.  In Malaysia, Public Complaints Bureau – act as Asian Ombudsman System – management and monitoring of public complaints – grievance handling mechanism for general public 52  Section 20 of the Malaysian Industrial Relations Act 1967 (“IRA 1967”) provides that an employee who claims he has been unfairly dismissed may make a representation to the Director General for Industrial Relations (“Representation”) within 60 days from the date of his dismissal. Procedurally, this is what happens after a Representation is filed: (a) The Industrial Relations (IR) Department will organise a conciliation meeting between the employee and the employer. At this meeting, an IR officer will act as a mediator between the two parties in hopes that the matter can be settled amicably. Legal representation is not allowed at the conciliation meeting. (b) In the event a settlement cannot be achieved at the conciliation meeting, the matter will be referred to the Minister of Human Resources, who has the discretion to decide whether or not to refer the matter to the Industrial Court. (c) Once the matter is referred to the Industrial Court, the employee’s claim will go through a mechanism that is similar to a civil claim. A trial (with witness testimony) will be heard before the Chairman of the Industrial Court, sitting alone. If the Industrial Court finds that the employee has been unfairly dismissed, the employee will typically be awarded either: (a) reinstatement and backwages; or (b) compensation in lieu of reinstatement and backwages. 53  THE END 54