Misconduct happens when an employee does something wrong either by doing something, not doing something, or through his behaviour. This may justify some disciplinary actions being taken by the employer. There are 2 types of misconduct namely as;

1) Gross misconduct – An act that warrants serious disciplinary action such as sexual harassment and breach of trust
2) Minor Misconduct- An act that warrants verbal or written warning such as persistent absenteeism

However, if the employee feels he has been dismissed without just cause and excuse, he may allege that the dismissal is unfair. Unfair dismissal is when an employer ends an employee’s service by exercising his prerogative power to hire and fire without providing a good & justifiable reason to dismiss. Dismissal is deemed to be unfair if it is made based on arbitrary, discriminatory, retaliatory or in bad faith or if the dismissal is substantively or procedurally not justified. According to Section 20 of Industrial Relations Act 1967, where a workman considers that he has been dismissed without just cause or excuse by his employer, he may challenge the dismissal. If the employee wants to challenge the dismissal he may raise defenses such as;

1) The employer condones the misconduct
2) Misconduct outside of employment
3) Dismissal is disproportionate to the misconduct
4) Absence of due inquiry

The employee needs to prove that the evidence brought by the employer is not sufficient and have doubt in it. As long as the employee can raise a doubt in the case of the employer on the balance of probabilities, hence the employee has the possibility to get reinstatement or compensation due to the unfair dismissal.

Hadhirah Azhar
Messrs Hazizah & Co.