With more employees working from home, companies do face increasing challenges with respect to employees who take too long to reply to their colleagues and superiors as well as to customers. In such circumstances, would your organisation treat this issue as a 'performance' issue or would you treat it as a 'misconduct'.
This week's employment update will hopefully give you some ideas on how best to manage these issues. Please see details below.
Lim Kar Wee v Urban Mobility Asia Sdn Bhd [Industrial Court Award No. 952 of 2022]
This update addresses the following question:
“Is a company justified in terminating an employee's services with 24 hours’ notice due to his failure to respond to clients and colleagues in a timely manner?"
In our feature case, the claimant was employed by the company as a Senior Full Stack Developer and tasked with its Web development. Approximately nine months into his employment with it, he was issued a warning letter for:
- Delaying in responding to his colleagues and company clients communication attempts to reach him,
- Refusing the company’s instructions to physically report to work, and
- Not being contactable during working hours via phone call, WhatsApp, Slacks and other available social media or communication platforms.
Despite the claimant responding to the warning letter and seeking clarification on it, the company nevertheless issued him a letter of termination with 24 hours’ notice of termination. This led to him contending that he had been unfairly dismissed.
The company on the other hand averred that his misconduct; namely his negligence in not responding to clients and colleagues in a timely manner together with his insubordination in failing to follow its instructions to report back to work in the office, had justified his dismissal.
What the Industrial Court Held
The Industrial Court found in favour of the company, holding that it was overall justified in dismissing the claimant. In coming to this conclusion, the court addressed the issue of whether the claimant’s actions of not replying to clients and colleagues in a timely manner constituted ‘negligence’ justifying his dismissal wherein it said:
“This court had referred to p. 8 of COB1, that is an e-mail dated 13 May 2020 from the company's client (Jez Strong) to COW1 whereby the client had stated his communication problem with the claimant, as follows:
... ‘It is now about a month since we spoke and we moved your vehicle onto our bespoke Pro Platform with full API capability and immobilisation. It seems that the platform is yet to be accessed though and I have had no joy getting in touch with Alan. Please can you update me on situation at Moovby. I am obviously a little concerned as have a lot vested in the relationship with you!’
The company issued a warning letter dated 20 May 2020 to the claimant via e-mail. The claimant replied via e-mail dated 27 May 2020 and 15 June 2020 whereby the claimant denied any misconduct on his part.
Based on the facts, surrounding circumstances and evidence in relation to the charge, the company concluded that the claimant was guilty of the charge preferred. Therefore, the claimant was dismissed from his employment with the company with immediate effects.
The company then issued an Employment Contract Termination Letter dated 16 June 2020 via e-mail dated 17 June 2020 to the claimant terminating his employment with the company with 24 hours termination.”
“This court views that the claimant's failure to be contacted, did not respond and delayed in responding to office's messages is an insolent behaviour which is detrimental to the company's discipline, and eventually affected in the company's business.
Therefore, based on facts of this case, this court finds on a balance of probabilities that the company has proved the charges levelled against the claimant as stated in the Warning Letter dated 20 May 2020 and Employment Contract Termination Letter dated 17 June 2020, namely -
(i) The company, colleagues and clients had problem in communicating with the claimant;
(ii) The claimant delayed in responding and/or did not respond to messages from colleagues and clients; and
(iii) The claimant could not be contacted during working hours.”
Following this, the court went on to address the issue of whether the company’s decision to dismiss the claimant from service with 24 hours’ notice amounted to a breach of his employment contract terms wherein it said:
“The claimant in his statement of case states that the company by issuing him a 24-hour notice of termination is a breach of the contract of employment. However, COW1 in his cross-examination had denied this suggestion by the claimant. The company had in fact referred to para. 6 of Annexure A of the letter of appointment dated 28 June 2019, which provides:
‘Under normal circumstances either the company or you may terminate this association by providing a notice of 30 days without assigning any reason. However, the company may terminate this agreement forthwith under situations of in-disciplinary behaviours.’"
Discover: Employment Update: Dealing with a Resignation Without Notice
How Your Organisation Can Benefit From This Case
It is More Expedient to Manage Staff’s Unresponsiveness to Communication (with Clients and Colleagues) as a Misconduct Instead of a Performance Issue
With ‘Work From Home’ becoming more commonplace, companies often find themselves in situations where employees are not responding fast enough when communicating with their colleagues, bosses and even clients. While late response to communication can be viewed as a performance issue, managing the employee via a performance improvement plan takes a longer time, i.e. typically between 3 to 6 months. Furthermore, the employee would also need to be paid his full termination notice in the event he/she fails the PIP.
This case decision has clarified that failing to respond to clients as well as one’s colleagues and superiors can also be managed as a misconduct, that is, negligence and/or insubordination. By managing this issue as a misconduct, an organisation can instead fast-track the employee’s termination via a show cause and domestic inquiry procedure in addition to not needing to serve the employee his/her full termination notice period.
This case details can be found in the August 2022 updates of the Malaysian Employment Law Learning and Reference System.
Click here to read more articles by this author, Shawn Sher.