What are some reasons why a manager might not want to deal with the misconduct of their employees?

Employees may occasionally engage in behaviour constituting misconduct at the workplace. If their employers suspect them of having misconducted themselves, they may be tempted to let go of the employee in question. However, termination is a serious matter and would be premature where the misconduct is merely suspected and not proven yet.

This article will suggest what employers can do to handle suspected employee misconduct at the workplace, in compliance with employment laws in Singapore. It will cover:

What Can Constitute Employee Misconduct?

To determine the relevant course of action to undertake, an employer should first determine whether the employee’s act in question constitutes misconduct.

Employee misconduct refers to an employee’s failure to fulfil the conditions of his or her employment in the employment contract. Acts that may constitute misconduct in the workplace include theft, dishonesty, or disorderly or immoral conduct.

For instance, in 2021, an employee of a printing services company was found guilty of criminal breach of trust by committing acts of misconduct in the form of theft. There, the employee had abused his position as the production manager by using the printing resources entrusted to him, such as ink and paper, for his personal freelance clients.

Similarly, embezzling funds or leaking confidential company information to external actors would constitute dishonest misconduct on the part of the employee who carries out such acts.

Insubordination to superiors may also constitute employee misconduct in the form of disorderly conduct. Insubordinate behaviour refers to conduct where an employee refuses to comply with directions issued in the workplace without valid reasons. However, where the employee is directed to engage in illegal activities, this could constitute a legitimate reason for the employee’s non-compliance.

Misconduct in violation of implied conditions of employment

The scope of employee misconduct can extend beyond any behaviour expressly contained in the employment contract. Under section 14 of the Employment Act, an employee may be dismissed for the failure to conduct oneself in a manner inconsistent with the express or implied conditions of his or her service. Implied terms of an employment contract could include terms relevant to the employee’s job scope, even if these terms have not been expressly stated in the employment contract.

For instance, under an employment contract between an employee of a bakery and the bakery owner, the employee would be expected to have free access to the baked goods for sale to customers. At the same time, although this requirement may not be written down in the employment contract, the employee would be expected to not help himself to the baked goods whenever he feels hungry notwithstanding such free access. A violation of such an implied term could amount to misconduct in the form of theft.

What Can You Do If You Suspect Employee Misconduct?

If you suspect that your employee has been engaging in activities that could constitute employee misconduct, you should address the matter in a manner consistent with the Ministry of Manpower’s recommendations.

Following the guidelines can assist you with the process of managing employee misconduct in accordance with the relevant laws.

Investigate the suspected misconduct

After deciding to address your employee’s potential misconduct, you should preliminarily investigate the situation. Although doing so is not a legal requirement, it can help you obtain concrete proof of the suspected misconduct.

When holding an investigation, you may wish to consider hiring a corporate private investigator. This course of action may be appropriate for misconduct relating to serious breaches such as leaking company secrets or embezzlement. The private investigator can look into the matter and help you to obtain evidence of the suspected misconduct as a third-party not known to the employee in question.

Whether the investigation uncovers any wrongdoing or otherwise, you should inform the employee of the investigation’s outcome. Employment is a two-way relationship and the court sees it fair for employers to disclose the outcome of the investigation to the affected employee. This is regardless of whether employers are legally obliged to make such a disclosure.

Conduct a due inquiry

To dismiss an employee on the basis of employee misconduct, a due inquiry process must first be conducted. This stage generally entails informing the employee in question of the allegations and evidence against him. This ensures that the employee has an opportunity to explain his or her side of the story. It is also recommended that the person hearing the inquiry is not someone who may be in a position of bias.

Although an employer cannot dismiss an employee before conducting a due inquiry and revealing the findings of misconduct, there are certain interim measures available to the employer.

An employer may suspend an employee from work for a maximum duration of 1 week. This duration can be extended if the employer successfully applies to the Commissioner for Labour for a longer period of suspension. However, the application must be sought at least 3 working days before the end of the 1-week suspension. If the employer chooses to suspend the employee, the employee must be paid at least half his or her salary during the period of suspension.

What to Do If No Misconduct is Found

If, at the end of the inquiry, no misconduct is disclosed on the part of the employee, then the amount of any salary withheld must be restored in full.

Besides the legal implications, an allegation of misconduct against an employee is serious. Thus, an employee who had been wrongly suspected of such misconduct may feel aggrieved. To avoid potential misunderstanding and antagonism within the workplace, it may be sensible to take measures such as issuing a company-wide broadcast explaining the outcome as well as an apology where appropriate.

What to Do If Misconduct is Found

If your employee is found to have committed an act of misconduct after the due inquiry process, you may wish to consider taking any one of the possible disciplinary measures:

While the foregoing disciplinary measures may be available and effective, the employer may find it appropriate to give employees a chance to change their behaviour in certain circumstances. This may be likely where the employer regards the employee as an asset to the business and the misconduct in question had been due to the employee’s inadvertence.

Terminate the employment

An employer who has established misconduct on the part of his employee can terminate the employee’s employment without prior notice. In this case, the employer will not need to pay salary in lieu of notice.

However, an employee who is terminated as such may seek to challenge the dismissal on the basis that it was wrongful pursuant to section 14(2) of the Employment Act.

Lodge a police report for the commission of a criminal offence

If the employee’s behaviour might constitute misconduct as well as a criminal offence, the employer can choose to file a police report. Examples where this may be the case include misconduct involving the embezzlement of company funds, which could constitute the offence of a criminal breach of trust, and accepting or giving bribes in violation of Singapore’s corruption laws.

Throughout the process, the employer should cooperate with the investigations and provide the police and prosecution with any relevant information or documents as requested. If charged and convicted of an offence, the employee faces a potential imprisonment term and/or a fine.

How to Prevent Employee Misconduct

Employee misconduct matters can pose undesirable disruptions to your business. To avoid such disruptions, it can be helpful to take certain preventive steps.

For instance, instituting clear guidelines as to employee conduct, as well as use of company data or other property, can help to reinforce expectations and convey the message that infringements will not be condoned. Conducting regular audits by engaging third-party services can also facilitate the identification and reporting of inconsistencies.

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While employee misconduct has the potential to inflict substantial and lasting detriment to a business, it is important to adequately investigate each matter in accordance with the law. Ad-hoc measures adopted without reference to officially published recommendations and legal requirements may potentially prejudice employees suspected of misconduct, and could also implicate your business with potential violations of employment laws.

If you are concerned about potential misconduct in your workplace, it is highly advisable for you to consult an employment disputes lawyer to guide you through the matter. A lawyer will be able to advise you on the appropriate course of action to take after considering the specific context. This includes your specific area of work, which may present unique considerations.

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