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Misconduct Aggravates When the Lateness is Persistent

Updated: Nov 18, 2022

Since the purpose of this article is to serve as an illustration, all real names and dates have been altered.

AC Ltd. v CKS

Industrial Court 7 February 1995

The parties to the matter before the Court are AC Ltd. ("the company") and CKS ("the claimant").

The issue before the Court is the claimant's dismissal on 11 November 1993.

The Claimant

The claimant was employed by the company as an assistant manager (sales) on 26 May 1992.

The claimant contends that:

  • his dismissal is without any just cause or excuse and/or in breach of the principles of natural justice and/or an unfair labour practice and/or unlawful.

The Company

In the statement in reply, the company contends that:

  • the claimant failed and/ or refused to carry out his functions properly, diligently and/or as required by his contract of employment, which resulted in the poor performance by the claimant of his job.

  • to assist the claimant in improving his work performance and attitude, the company provided the claimant with counselling.

Despite the attempts by the company to assist the claimant, he was non-cooperative and failed and/or refused to respond positively.

Further, the claimant had, at several counselling sessions, challenged the management of the company to dismiss him and or take him to Court.

The company contends that the dismissal was lawful, with just cause or excuse and under the principles of natural justice and fair labour practice.

The conduct and attitude of the claimant complained of by the company are tabulated in a company's memorandum dated 24 July 1993, which can be summarised as follows:

  1. Punctuality;

  2. Failure to inform the company when leaving the office for an official or personal appointment;

  3. Poor Performance:

  4. Time-keeping

  5. Failure to submit reports on time;

  6. Agency visits; and

  7. Production;

  8. Non-cooperative & disrespectful attitude

The company's working hours were from 8.30 a.m. to 5.00 p.m. with lunch hours from 12.45 p.m. to 1.30 p.m.

COW4 (Witness No 4 for the Company), the head of the department to which the claimant was attached to, told the Court that the claimant was consistently late to work.

Initially, the claimant was verbally counselled on his impunctuality on several occasions, but he did not improve. For the months from March to May, the claimant was late for work between 4 to 14 times a month.

In the month of June, the claimant also failed to clock in and clock out regularly.

Subsequently, COW4 issued written reminders, first on 24 June 1993, followed by another show cause letter dated 6 July 1993, and he only replied to the third show cause letter dated 14 July 1993. His reasons for coming to work late were:

  • serving the company's clients in their respective offices in the morning; and

  • meeting with agents and agency leaders before they leave for the field in the morning.

COW4 contends that the claimant's clients started work at 9.00 a.m. Therefore, the claimant's reason for impunctuality was not acceptable. The claimant continued unpunctual from July to October despite being given a warning letter dated 21 July 1993.

He was late between these 4 months, from 10 to 19 times each month. COW4 testified that, unlike other latecomers, the claimant refused to heed to his advice to improve his punctuality and was habitually late. It was clearly reflected in his punch cards from March to October.

The claimant was notified of his areas of weakness by COW4 at a counselling session, the performance review was recorded and contained in a memorandum sent to the claimant as follows:


To: CKS Subject: Performance Review Date: 24 July 1993

This refers to our discussion dated 24 July 1993 in the presence of SF.

Appended below are the following:

A) Punctuality

You have requested I clarify the meaning of tardiness. Please note my letter to you dated 20 July 1993 is self-explanatory.

B) I take this opportunity to discuss with you your performance to date, which is a concern to management.

1) Morning Appointment - Reminder Should you have a morning appointment, give 1 day's notice with the following particulars to either L, B, Y or me:

  1. Time of appointment

  2. Name of company

  3. Person in charge

  4. Purpose of visit, e.g. presentation of proposal, service etc.

This appointment should be recorded in the diary at Tan Yean Cheng's desk before the appointment. This ensures management knows your whereabouts

2) Appointment If you have an appointment and you are unable to clock out, call back our office before 5 pm to inform the above personnel as in 1) above and provide the following information:

  1. Name of company

  2. Purpose of visit

3) Lunch hour - Reminder Lunch hour for A Ltd. staff is 12.45 pm to 1.30 pm (45 minutes). If you have an early lunch appointment or you will be back later than the stipulated time, kindly inform the relevant personnel and provide the same information as in item (1),

4) Production Production for the period December 1992 to June 1993 (updated 7 months) as per the list attached.

All the key result areas, i.e. production, proposals, field calls, workshops & CEB cases, are far below the pro-rata month-to-date target. You are advised to ensure for future months, all the key result areas meet or exceed the target.

Note: Individual production & activity report was given to you every month. This is for you to update & monitor your key result areas.

5) Reports - Reminder Again, we have the unpleasant task to remind you, all reports required must be submitted on time. This, you have not done. The following reports include:

  1. The weekly activity report and summary

  2. Prospect's listing

  3. Show cause letter for May's activity & production monthly report.

This was told to you, and you agreed to reply between 13 July to 17 July 1993. To date, we have not received your reply.

6) From the prospect list, it was evident that you have a lack to follow-up on the proposals.

As per L's discussion with you and his memo dated 24 July 1993. Please comply with immediate effect.

7) Agency visits During the sales meeting on the 1993 updated and 1994 budget held on 29 April 1993, you gave us the 1993 updated budget of RM700,000 FYP. You have also submitted an action plan for agency visitation twice a month to conduct the workshop. Both of your submission was accepted by management.

Note: In May, you conducted zero workshops and June 1 workshops.

Again, you are advised to comply with the agreed number of workshops immediately.

Any workshop you conduct must be reported in your weekly activity and summary report.

8) Daily appointments and activities This memo reminds you that whenever you have an appointment with an agency, policyholder, broker or prospect, you are required to record it in the diary before going out of the office.

9) Meetings In meetings, you must contribute your ideas for the department's benefit and all present.

10) Time Management Your management of time needs improvement. Normally, it does not take a whole day to see two (2) prospects. Your reason for the delay is waiting for the prospect.

The following suggestion are offered:

  1. Call up to the prospect to confirm the appointment before you visit them,

  2. Get the assistance of the service executive when the case has been closed to service your client.

After the discussion, I asked you whether you had any questions, understood or were clear about our discussion. And this is to reconfirm you have no questions to ask, and you acknowledge you understand and is clear about the issues discussed.

The company views your performance seriously.

You are advised to comply with our department and company's requirement and improve your performance immediately. Yours sincerely,

signed ... Mr X Asst. Vice President

The claimant ignored COW4's instruction and did not record his whereabouts whenever he left the office for official or personal matters as stipulated in para. 8 of the memorandum.

It is the company's contention the claimant's poor performance was the result of his attitude in time-keeping, submission of reports and agency visiting. Hence his production was low. It was not due to the increase in the budget for production for assistant managers,

The company admitted taking away 16 agencies from the claimant's portfolio but contended the claimant was given the Japanese Account, which was a lucrative account.

As to XYZ Marketing Plan, which the claimant was initially involved in securing the account, it was pointed out the claimant's wife was the officer in charge of the matter in XYZ, and she had to decide the approval of the deal.

To avoid the allegations of conflict of interest, COW4 transferred the account to another assistant manager.

It is also the company's contention that assistant managers were given credit for the deal closed by them irrespective of allotment of the agency. The company permitted encroachment