Disciplinary procedure

The employer of an industrial or commercial establishment that has a labour union is required to negotiate on the charter of demands served on him by the latter after every one or two years, as the case may be, and reach an agreement. Besides improvement in the terms and conditions

By our correspondents
June 15, 2015
The employer of an industrial or commercial establishment that has a labour union is required to negotiate on the charter of demands served on him by the latter after every one or two years, as the case may be, and reach an agreement.
Besides improvement in the terms and conditions of employment of workers, the purpose of an agreement so arrived at is to ensure peace within the establishment during the period it remains operational. A peaceful work environment is one of the critical factors that contribute towards optimising a company’s output.
An organisation must follow a policy of progressive discipline in respect of those workers who tend to break the peaceful environment. A worker having problems with his behaviour and attitude should be given a chance to improve these traits. However, those accused of serious offences have to be dealt with firmly and in accordance with the provisions of law.
The procedure of handling disciplinary matters has been prescribed under Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. This law prescribes five types of misdemeanours – comparatively minor offences such as disregard or disobedience of rules or orders and making false or misleading statements etc. Only frequent repetition of the misdemeanours by a worker transforms them into a major offence called ‘misconduct’ and listed out in clause 3 of the Standing Order.
A policy of progressive discipline should be applied to those workers who are accused of committing a misdemeanour. It should start with a counselling session with the worker concerned on the commission of the first offence followed by a written warning on the subsequent act or omission constituting misdemeanour.
There are twelve types of acts or omissions which constitute misconduct under the Standing Order varying from serious offences such as wilful insubordination or disobedience to any lawful and reasonable order of a

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superior and theft, fraud, or dishonesty in connection with the employer’s business or property to lighter offences like negligence or neglect of work, which become misconduct only if committed habitually.
Acts and omissions defined as misconduct under Standing Order 15 have not been amended since the inception of the law in 1968 although the needs of industrial and commercial enterprises have changed substantially since then. Misconducts related to unauthorised absence from work and habitual late attendance are presently worded as: (a) habitual absence without leave or absence without leave for more than ten (calendar) days and (b) habitual late attendance.
Based on rationality and the prevailing practices, these may be amended as follows: (a) habitual absence without leave or absence without leave for more than six working days and (b) habitual late attendance for more than three consecutive days or more than four days in a month. Insertion of number of days in (b) will remove any ambiguity in the law.
The following definition of ‘sexual harassment’ as given in ‘The Protection against Harassment of Women at the Workplace Act, 2010’ also needs to be brought within the ambit of misconduct constituting a serious offense: “sexual harassment including any unwelcome sexual advance, request for sexual favours or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment”.
In view of the acute law and order situation, carrying of arms and weapons within the premises of an establishment should also be brought within the purview of misconduct –“carrying any arms or weapons within the premises of the employer without any legal authority”.
In case a worker becomes violent at the workplace whereby his presence within the premises is likely to expose his colleagues to physical injury, such worker may be suspended from service under clause (5) of the Standing Order, which states as follows:
“Where, for the purposes of conducting an inquiry into the alleged misconduct of a workman, the employer considers it necessary, he may suspend the workman concerned for a period not exceeding four days at a time so, however, that the total period of such suspension shall not exceed four weeks except …During the period of suspension, the workman concerned shall be paid by the employer the same wages as he would have received if he had not been suspended”.
Previously a workman would be paid fifty percent of his wages as subsistence allowance during the period of suspension, which was increased to payment of full wages through an amendment in 2008. Consequently the provision of suspending a workman for a period of four days at a time has become redundant. An employer should, therefore, not be allowed to suspend a workman till enquiry into the allegations has been completed or for a maximum of four weeks as mentioned above.
A worker who is found guilty of misconduct in the domestic enquiry may be dismissed from the job. An employer has the option of imparting lesser punishment to a worker given benefit of doubt by the enquiry officer. It is, however, desirable in the latter situation that instead of a punishment the worker is served a written reprimand advising him to remain careful while performing his duties in the future.
The writer is an industrial relations professional.

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