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After studying this chapter, you should be able to:
1. Explain the concepts of employee rights and employer
responsibilities.
2. Explain the concepts of employment-at-will, wrongful discharge,
implied contract, and constructive discharge.
3. Identify and explain the privacy rights of employees.
4. Explain the process of establishing disciplinary policies, including the
proper implementation of organizational rules.
5. Discuss the meaning of discipline and how to investigate a
disciplinary problem.
6. Differentiate between the three approaches to disciplinary action.
7. Identify the different types of alternative dispute resolution
procedures.
8. Discuss the role of ethics in the management of human resources.
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11.0 INTRODUCTION
Employee rights and discipline are some of the main managerial issues in
employment and labor relations. If we look at the job scenario nowadays, there are
many employers who have taken the steps to terminate the services of their workers
as a way to reduce the operation cost. Through the collaboration and reconstruction
that have been done, there are many organizations offer voluntary separation
scheme (VSS) as one means to lessen the numbers of workers they already have.
Nevertheless, there are also workers who have been resigned without receiving any
compensation and logical reasons.
Apart of using the excuse of the economic crisis, employers also use of excuses like
indiscipline and do not present a good performance in work as what is expected just
so they could sack the workers. There are workers who are given hard punishment
for a little mistake they did and there are some who are not given the chance to
defend themselves after they have been accused. However, there are not many who
are brave enough to come forward and lodge a report for they do not know their
rights as workers.
When managers take an action against employees for violating an organizational
work rule or for poor performances, the manager uses the organizational disciplinary
procedure to resolve the problem. Some organizational have very formal disciplinary
procedures, others are less formal and some may have no set of procedures at all.
Managers should view discipline as a corrective and preventive measure, putting the
wrong employee back on the right path instead of punishment for going wrong.
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11.1 UNDERSTANDING THE EMPLOYEE RIGHTS AND PRIVACY AND EMPLOYERS RESPONSIBILITY
Employee rights and workplace privacy and employee discipline continue to have a
major influence on the activities of both employees and employers. Furthermore,
managers are discovering that the right to discipline and discharge employees which
is a traditional responsibility of management is more difficult to exercise in light of the
growing attention to employee rights. Disciplining employees is a difficult and
unpleasant task for most managers; many of them report that taking disciplinary
action against employee is the most stressful duty they perform. Balancing employee
rights and employee discipline may not be easy, but it is a universal requirement and
a critical aspect of good management as shown in Figure 11.1.
Various laws, statutes, rules and procedures have secured basic employee rights
and brought numerous job improvements to the workplace. Employee rights litigation
concerns such workplace issues as employees’ rights to protest unfair disciplinary
action, to question genetic testing, to have access to their personal files, to challenge
employer searches and monitoring, and to be free from employer discipline for off-
duty con
Figure 11.1: Illustration of Employer responsibilities on employee
Employer Responsibilities Balanced against employee rights is the employer’s responsibility to provide a safe
workplace for employees while guaranteeing safe, quality goods and services to
consumers. The failure of employers to honor employee rights can result in costly
lawsuits, damage the organization’s reputation and hurt employee morale.
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Negligent Hiring In law, negligence is the failure to use a reasonable amount of care when such failure
results in injury to another person. Negligent hiring is a doctrine that places liability on
the employer for actions of its employees during the course and scope of their
employment. A general responsibility exists for employers to exercise reasonable
care in preventing employees from intentionally harming other employees during their
course of work. When one employee commits a violent act on another employee, the
employer may face a negligent hiring lawsuits claiming that the employer fail to use
reasonable care in the hiring of its employees. Negligent hiring forces managers to
take extra care in the employment and managing workforce.
Employees Job Protection Rights Snell and Bohlander (2010) defined employee rights as guarantees of fair treatment
from employers, particularly regarding an employee’s right to privacy. It is a warranty
that workers will get a fair treatment from the employer throughout their service. 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 and services to consumers.
Employees regard their jobs as an established right that should not be taken away
without just cause or proper reason. Even though there is no guarantee that jobs are
property rights of employees, however, employees have right to expect sound
employment practices (fair and just) from employer. There are several legal
considerations that need to be observed regarding job protection rights or security of
employees’ job.
In Malaysia, there are many employees’ job protection rights that have been listed
out in various acts such as Workers Compensation Act 1952, Employment Act 1955,
Employees’ Provident Fund 1991, Human Resource Development Act 1992, Trade
Unions Act 1959, Industrial Relations Act 1967 and Occupational Safety and Health
Act 1994 as well as Employee Social Security Act 1969. Workers need to know a
little bit about the acts which related to them so that they are not easily being
oppressed by the employer. Figure 8.2 shows the example of employees’ right with
regard to job protection.
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Figure 8.3: Sample of Employee Rights on Job Protections Source: Snell and Bohlander (2009)
Privacy Rights The right of privacy can be regarded as a matter of personal freedom from unwanted
government or business intrusion into personal affairs. Employee privacy is
recognized as one of the most significant workplace issues facing companies today.
However, employer challenges to privacy right defend their intrusion into employee
privacy by noting their legitimate interest in some of the personal affairs of
employees, particularly when those affairs (such as drug abuse, criminal activity and
co-worker dating) may directly affect employee productivity and workplace safety and
morale. Figure 8.3 shows the example of employees’ right to privacy.
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Figure 8.4: Sample of Employee Rights on Privacy Source: Snell and Bohlander (2009)
Employee Discipline Employees should take note that if their rights to job protection and privacy have
been provided by employers with reasonable care, any violations done by employees
are subjected to disciplinary action. Disciplinary action taken against an employee
must be justified based on effective policies and procedures to govern its use.
Even though discipline is very important in an organization, it is one of the
challenging fields in the function of human resource management. The main
objective of discipline is to motivate employees to obey standard performance that
have been set by the organization. Discipline is also used in constructing or
maintaining the respects and trustfulness among the employer and the employees.
However, of it is not being well managed, it can stimulate problems like decreasing
employees’ motivation, provoke the employees’ fury and also starts an unhealthy
situation between the employer and the employees.
Activity 1 : Find the details of job protection rights and privacy rights in the
textbook written by Snell and Bohlander (2010) page 571 -587).
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Definition of Discipline Discipline also can be defined as an action taken against an employee who has
violated an organizational rule or whose performance has deteriorated to the point
where corrective action is needed. According to Snell and Bohlander (2010),
discipline can be defined as:
• Treatment that punish
• Orderly behavior in an organizational setting
• Training that molds and strengthens desirable conduct or corrects
undesirable conduct as well as develops self control.
In general, discipline is a penalty or punishment (corrective mechanism) against an
employee who fail to meet established standards or violate the rules to prevent more
serious harm to the organization.
Objectives of Disciplinary Action Amongst the objectives of disciplinary action are as follows:
• To establish equitable set of guidelines and procedures for the administration
and resolution of misconduct for all employees.
• To establish relevant disciplinary procedure.
• To encourage, promote and regulate discipline in the organization.
• To signal to employees the level of expectation and standards of performance
and behavior.
11.3 A DISCIPLINARY MODEL
HR department is responsible for the development of the organization’s disciplinary
policy as well as ensuring that the policy is administered in a fair and consistent
manner throughout the organization. Organization policies and procedures act as a
guideline to assist those responsible for taking disciplinary action and help ensure
that employees will receive fair and constructive treatment. These guidelines help
prevent disciplinary action from being voided or reversed through the appeal system.
Figure 8.5 shows an example of company rules and regulations on discipline.
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Figure 8.5: A Sample of Company Rules & Regulations Source: Maimunah Aminuddin (2009)
Figure 8.6 presents a disciplinary model that illustrates the logical sequence in which
disciplinary steps must be carried out to ensure enforceable decisions. If discipline becomes
necessary, the employee’s immediate supervisor is the logical person to apply the
company’s disciplinary procedure and monitor employee improvement
Figure 8.6: A Disciplinary Model Source: Snell and Bohlander (2010)
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11.4 RESULT OF DISCIPLINE INACTION
Studies show that it is a common characteristic of many supervisors to avoid taking
disciplinary action against employees. There are few reasons why managers fail to
take an action with regard employee discipline as follows:
• Failed to document earlier action.
• Receive little or no support from higher management.
• The supervisor was uncertain of the facts underlying the situation requiring
disciplinary action.
• The supervisor wanted to be seen as a likeable person.
Therefore, to enhance the disciplinary action in the organization, the following actions
need to be done or taken into account by manager who responsible for taking
disciplinary action.
• Corrective action must be taken as soon as possible because failure to take
disciplinary action will affect other areas of HRM.
• If the management has been in lax in the enforcement of a rule, the rule must
be restated along with the consequences for its violation, before disciplinary
action can begin.
• Have employees sign that they have read and understand the organizational
rules.
11.5 CAUSES OF DISCIPLINARY ACTIONS
There are many factors that could cause disciplinary actions to be taken against
employees. According to Ivancevich (2001), disciplinary actions usually caused by
employee misconducts such as the following:
• Lack of knowledge about jobs.
• Emotional problems.
• Motivational problems.
• Physical problems.
• Family problem.
• Problems with colleagues.
• Problems caused by the company policy.
• Problems relating to society value.
• Problems in terms of occupational context.
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Within organizational context, misconducts can be categorized into two (2) namely,
minor misconduct and major misconduct (Snell and Bohlander (2009). Conduct is
defined as exercising behavior that is consistent with organizational expectations
required in the workplace either voluntary or obligatory in order that work can be
maintained. Meanwhile, misconduct is an improper behavior that violates the
standards rules of an organization. It is an intentional willful wrong-doing or deliberate
violation of a rule or standard behavior by the employees. Table 8.1 and Table 8.2
show examples of employee misconduct and types of employee misconducts
respectively.
Table 8.1: Examples of Employee Misconduct Source: Snell and Bohlander (2009)
Table 8.2: Types of Misconduct Source: Snell and Bohlander (2010)
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11.6 INVESTIGATING THE VIOLATION OF ORGANIZATIONAL RULES In handling employees that violate organizational rules and policies, managers who
responsible to take disciplinary action should do the following:
• Complete documentation of employee misconduct.
• Conduct the investigative interview.
Documentation of employee misconduct In conducting an employee investigation, it is important to be objective and to avoid
assumptions, suppositions and biases that often surround discipline cases. When
investigating employee misconduct, the proper documentation is vital. The
maintenance of accurate and complete records, therefore, is an essential part of an
effective disciplinary system. Employee misconduct must be recorded immediately,
complete, detail and accurate. The following items should be included for
documentation of employee misconduct.
• Date, time, and location of the incidents).
• Description of the problem/misconduct.
• Consequences of misconduct on employee and/or work unit.
• Prior discussions with employee about conduct.
• Disciplinary action to be taken and specific improvement expected.
• Consequences for employee if behavior is not changed and follow-up date.
• Reaction of employee to supervisor’s efforts.
• Names of witnesses to incident.
Conducting the investigative interview Before any disciplinary action is initiated, an investigative interview should be
conducted to make sure employees are fully aware of their offense. This interview
should focus on how the offence violated the performance and behavior standards of
the job. When conducting investigative interview, manager must ensure the following
items are fulfilled:
• How the offense violated the performance and behavior standards of the job.
• Avoid getting into personalities or areas unrelated to job performance.
Consider the job related performance.
• Employee must be given a full opportunity to explain his or her side of the
issue.
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• Employee must be given right to representation by union representatives (if
any).
11.7 DISCIPLINARY APPROACHES If a thorough investigation shows that an employee has violated some of organization
rule, disciplinary actions must be imposed. Employers are actually able to use any
disciplinary approaches which were considered appropriate when considering that
employees committing an offence. There are three (3) types of disciplinary
approaches such as progressive, positive and hot stove.
Progressive discipline approach This is the most commonly used form of disciplinary approach. This approach treats
disciplinary problems in phases whereby the punishment will be more severe should
the same offence be committed again. The penalty imposed to the employee is
appropriate to the severity or stages of the offences or violations made by employees
as shown in Figure 8.7. Progressive approach allows employees to mend their
behavior before facing punishments such as termination. There are four (4) steps
involved in this approach.
Figure 8.7: Suggested Disciplinary Action for Violation of Rules using Progressive Approach Source: Gary Dessler (2009)
• Oral warning Oral warning or verbal warning is given to employees who have committed
their first offences by their supervisors. The supervisors will then warn that the
punishment will be more severe if the same offence be repeated in the future.
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• Written warning Written warning or formal warning as shown in Figure 8.8 will be given to the
employees who are committing the same offence by way of a warning letter.
The offences will be documented in their files and the employees will once
more be told that a stricter punishment will be taken should it occur again.
Figure 8.8: An Example of a Written Warning Source: Gary Dessler (2009)
• Suspension without pay
If the employees still fail to adhere to the instructions, they will be suspended
from work without pay. At this stage, the employee will be given a final
warning and should they fail to address the problem, termination is the most
likely punishment.
• Discharge or termination Termination is the last resort to be taken should the employee still unable to
follow the instruction given. The comprehensive process is shown in Figure
8.9
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Figure 8.9: Progressive Discipline Procedure Source: Mathis and Jackson (2006)
Positive discipline approach. It is a system of discipline that also known as problem solving approach focuses on
the early correction of employee misconduct, with the employee taking total
responsibility for correcting the problem. This approach is built upon cooperative
environment whereby employee and employer discussed and find the solution for the
problems. The problems are to be rectified and do not require any sorts of
punishment. Positive approach replaces punishments with that of counseling
sessions between supervisor and employees in whom employees are expected to
correct his misconduct voluntarily. There are four (4) steps to implement positive
discipline.
• First conference It is quite similar to progressive approach however; employees will be given
counseling and oral reminder at first conference. Both parties also are
expected to discuss the problems at hand and to find the appropriate solution.
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• Second conference If the employees are failed to improve their performance or repeats the same
offence, both parties are expected to meet once more and discuss the
reasons why the solution did not materialize. At this stage the solution agreed
by both will be documented for further action and will be kept in employees’
personal file.
• Decision making leave or decision day When employees; still failed to adhere to the written agreements as agreed,
they will be called again and be given a final warning. Certain organization
would consider offering a day’s off with pay to give the employee tome to
ponder whether to continue to work in the organization.
• Termination Failure to improve their working performance or a repetition of the same
offence will result in the termination of the employee. The comprehensive
positive approach is shown in Figure 8.10.
Figure 8.10: Positive approach procedure Source: Snell and Bohlander (2009)
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• Differences between progressive approach and positive approach Table 8.3 summarized the differences between progressive approach and
positive approach.
Table 8.3: Differences between progressive approach and positive approach
Hot Stove approach. Certain managers believe that this approach is more effective than the others for it
applies the concept of taking necessary precautions. This approach has the
characteristics of warning, instant in nature, consistent and not personal. The
explanations of the characteristics are as follows:
• Provides early warning It is extremely important to provide advance warning that punishment will be
taken due to unacceptable behavior. Manager usually informed all employees
regarding the warning system – be it in written or in oral form. Since the
manager is the closest to the employees, thus, it is their responsibility to
remind the employees from time to time.
• Burns immediately The punishment must occur immediately so that the individual will understand
the reason for it. An immediate burn of disciplinary action is taken when it
comes to this approach, as soon as an investigation is concluded. With this,
the employees will immediately understand the correlation between the
effects of their offences through the penalties imposed.
• Gives consistent punishment The punishment given should be consistent whereby anyone who performs
the same act will be punished the same way.
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• Burns impersonally Disciplinary actions should be taken in a non personal matter as a form of
correcting certain inappropriate behaviors of employees. The punishment
given should be impersonal without favoritism.
11.8 DISCHARGING EMPLOYEES
During the duration of investigation, the employer can suspend the employee for
about two (2) weeks. When employees fail to conform to organizational rules and
regulations, the final disciplinary action in many cases is discharge or termination.
Employer can terminate the employment contract of the employees after an
investigation has proven that the employee has committed an offence. Because
discharging has serious consequences for the employee and the organization, it
should be taken only after a deliberate and thoughtful review of the case had been
done. If employers intend to terminate the employees, below are few tips to be
followed (Snell and Bohlander (2010).
• Dismiss employees if there are valid reasons Employers should fully understand the reason of firing the employee. The
reason should be in line with the regulation and practices of the organization.
• Follow the correct procedures Employer must make sure that termination process is according to the law
and regulation. Before decision to fire the employees is made, inform them
beforehand the offences that they have committed.
Activity 2 : Find out what types of disciplinary approach used by your
organization? Do you think that it will help your organization in handling
employees’ discipline?
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• Document all problems relating to employees’ performance If employer intends to terminate the employee, make sure that the offence is
documented properly, if not, they might use it as an excuse for unfair
dismissal.
• Consistency in dealing with employees Employers must ensure that the termination process is conducted fairly and
just to the employees.
In discharging the employees, employers should have exercise reasonable
care prior for termination. Every effort should be made to ease the trauma a
discharge creates. Such action can help the employee face the problem and
adjust to it in a constructive manner. This includes the following:
Informing the employee Regardless of the reasons for a termination, it should be done with personal
consideration for the employee affected. Employees must be informed honestly,
tactfully of the exact reason of termination. Here are several guidelines when
informing the employees the decision for termination.
• Come to the point within the first 2 or 3 minutes and list in a logical order all
reasons for the termination.
• Be straightforward and firm yet tactful and remain resolute in your decisions.
• Make the discussion private, businesslike and fairly brief.
• Don’t mix the good with bad.
• Avoid making accusations against employee and injecting personal feelings
into the discussion.
• Avoid personality differences between you and employee.
• Inform about severance pay and the status of benefits and coverage.
• Inform how you will handle employment inquires from future employers.
Termination meeting should be held in a neutral location, such as conference room,
to prevent the employee from felling unfairly treated. Managers are advised never to
discuss the discharge or terminated employee with other employees, customers and
other individuals.
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Due process Due process is also known as domestic inquiries. Normally, due process is provided
employees through the employer’s appeal procedure. It is an internal hearing held
by employer to determine whether an employee is guilty of an act of misconduct, for
the purpose of employee’s right to be heard. Employee must be given the opportunity
to present his or her side of the story and the opportunity to defend or explain their
side of the story. This is to ensure a full and fair investigation of employee
misconduct occurs. The Principles of Natural Justice should be practiced at due
process session.
• Nemo Judec In Causa Sua
It is the rule against bias in which no one to be judge in his own cause.
• Audi Alteram Partem
It is a rule requiring a fair hearing that includes the following:
• Worker has the right to know what he is accused for.
• No one should be condemned unheard.
• Worker must be given time to reply for accusations.
• An unbiased party must be conducting the inquiry.
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11.9 ISSUES OR PROBLEMS IN DISCIPLINARY PROCESS
Figure 8.11 below shows some of the disciplinary issues or problems. Take note that
most of the problems are contributed by the manager that makes the disciplinary
action is ineffective and fail to correct the employee misconduct.
Figure 8.11: Issues or Problems Associated with Disciplinary Action
Source: Snell and Bohlander (2009)
Activity 3 : Based on the issues or problems shown in Figure 8.11, rank the
problems from the most serious to the less serious problems. Identify the main
issues or problems relating to disciplinary action at your workplace.
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11.10 GUIDELINES FOR THE IMPLEMENTATION OF ORGANIZATIONAL RULES
Below are several guidelines that can be used during the process of determining
what kind of disciplinary action to be decided by the responsible party as shown in
figure 8.12. Figure 8.13 illustrates the sample of disciplinary procedures based on
several guidelines.
Figure 8.12: Guidelines for the Implementation of Organizational Rules Source: Snell and Bohlander (2009)
Figure 8.13: Sample of Disciplinary Guideline
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11.11 ALTERNATIVE DISPUTE RESOLUTION PROCEDURES For organizations that have worker’ union, the procedures to maintain employees’
right and privacy are usually contain in the collective agreement. However,
organizations that do not have workers’ union, the Alternative Dispute Resolution
(ADR) procedure are used. There are several methods used in ADR are:
• Step review system
It is a dispute resolution system for reviewing employee complaints and
disputes by successively higher levels of management. This system is an
examination of complaints in a step-by-step manner. Figure 8.14 shows the
process of examining the complaints using step review system.
Figure 8.14: Conventional Step-Review Appeal Procedure
• Peer-review systems It is a system for reviewing employee complaints that utilize a group
composed of equal numbers of employee representatives and management
appointees. This complaints committee functions as a jury since its members
weigh evidence, consider arguments, and after deliberation, vote
independently to render a final decision.
Activity 4 : Based on Figure 8.11, identify whether your organization is
currently having this guidelines in disciplinary manual.
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• Open-door policy It is a policy that helps settle employee grievances by identifying various
levels of management above the immediate supervisor for employee to
contact. Normally someone in the organization is designated as the person of
final authority to render decisions. Normally, employees will look for certain
managers who they trusted to forward their complaints.
• Ombudsman system Ombudsmen are designated individuals to whom employees may go for
resolution of their grievances. These individuals have no power to finalize a
decision. Ombudsmen use the technique of mediation—along with the power
of persuasion—to reach a cooperative settlement between the employee and
management.
• Mediation Mediation uses the assistance of a third-party neutral to resolve employee
complaints. Mediators can be designated individuals within the organization
or they may be selected from outside the company. Mediators have no power
to render an award over employee complaints. Rather, they use the
techniques of persuasion, fact gathering, communication, and suggestions to
fashion a settlement the employee and management can accept. A large
benefit of mediation is that the parties maintain control of the procedure itself
and the settlement reached. Theoretically, there are no winners or losers in
mediation. The parties are responsible for crafting the final settlements.
• Arbitration Arbitrators are third-party neutrals who have the legal power to finalize an
employee complaint. Arbitrators make employment decisions that the parties
must comply with.
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11.12 SUMMARY Discipline is an important approach where the management utilizes as a tool to
monitor and control the employees conduct. In disciplining the employees,
management can adopt several approaches to ensure both party benefited from the
disciplinary action. Management must ensure that their action does not backfire by
having a clear disciplinary action process. Most organizations will impose severe
action after several flexible actions taken failed.
1. List at least FOUR important factors in managing dismissal effectively.
2. Describe what due process is and explain the alternative dispute
resolution.
3. Differentiate between the positive approach and progressive approach.
4. Discuss methods available to conduct disciplinary action.
5. Why has the positive approach to discipline been useful in reducing
employee lawsuits?
6. Discuss advantages and disadvantages using hot stove approach.
7. Explain how you would ensure fairness in disciplining your
employees?.
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Study Notes
