It is not uncommon for employers to deploy the grounds of ‘poor performance’ as means of dismissal of employee. This, is an abuse of employer’s rights and managerial prerogative. The Industrial Court will intervene and struck down such dismissals. The following general guidelines apply when determining the bona fide of dismissals on grounds of poor performance: 1. Employer must prove that the employee was warned of his poor performance. 2. Employee was accorded sufficient opportunity to improve, and; 3. Despite the above, the employee failed to sufficiently improve his performance. Employers to be mindful that: 1. Poor performance is not misconduct. 2. Prior warnings of poor performance must be given. 3. Employer must undertake rehabilitative measures to assist underperforming employees. 4. If the employee is placed on Performance Improvement Plan (PIP), the PIP must be in good faith, clear, reasonable and complied with closely. 5. Where targets are set for underperforming employees, the target must be reasonable. Unreasonable targets can be struck down as unfair labour practice. 6. Employees must be given sufficient time, guidance and opportunity to improve. See– Ireka Construction Berhad v. Chantiravathan a/l Subramaniam James [1995] 2 ILR 11 – Lee Hsin Ying v. Sleekflow Technologies Sdn Bhd – Award No. 55 of 2026
SOLICITOR’S ‘MISCONDUCT’ – personal culpability must be present.
The Court of Appeal recently allowed an appeal by a solicitor who was found guilty of misconduct by the Disciplinary Board and suspended for 6 months – the Grounds of Decision below. The ‘misconduct’ in short: the solicitor was a partner in the firm, handling a winding up matter; his LA had emailed an order that was not accurate and premature. The DB held that this was a misconduct by the solicitor as he was in charge of the matter. The High Court had upheld the DB’s decision amongst others on the basis of vicarious liability. The Court of Appeal however disagreed and allowed the appeal. It was held amongst others that: ■ In a misconduct allegation, there must be personal culpability on the part of the solicitor. ■ ‘guilt’ is inseparable from personal culpability, reflecting individual moral and legal fault, whereas civil liability can exist without personal blame e.g vicarious liability? ■ the foundation of disciplinary responsibility lies in personal culpability. ■ A finding of misconduct cannot rest solely on the fact that the solicitor had authority/responsibility over the ‘erroneous’ subordinate. ■ Disciplinary process is not intended to impose vicarious liability, as in civil proceedings. ■ Disciplinary process is to determine whether the individual legal professional has, by act or omission, fallen below the standards of integrity, competence, or diligence expected of members of the legal profession. ■ Unlike civil liability, which may arise without proof of fault, disciplinary sanctions are inherently personal and reputational, as they put the legal practitioner’s integrity in issue. ■ The disciplinary tribunal must determine not only whether misconduct occurred within the firm, but whether the legal practitioner personally bears responsibility for it. ■ To hold otherwise would blur the line between civil responsibility and professional discipline, punishing individuals not for their own failings but for those of others. ■ The integrity of disciplinary justice demands that liability be anchored in personal fault. ■ The Appellant could only have been found guilty of misconduct if personally culpable. This decision clarifies once again that disciplinary proceedings is personal in nature in that there must be actual ‘wrongful ‘ act or omission by the said professional and vicarious liability – a concept of attaching liability even without actual personal fault or ommission – has no place in disciplinary proceedings.