Misconduct and dismissal

by Ben Crawford, foreign registered lawyer Allen & Overy

Article contributed by Allen & Overy

Summary dismissal, or the instant dismissal of an employee, is a drastic step and can have a serious and lasting effect on the employee's life. It is considered a form of "capital punishment" and should be used only as a last resort.

This explains why sometimes, although employers may be aware of an employee's act of misconduct, they have chosen not to take action. The case of Ng Ai Keng, Jasmine v the Open University of Hong Kong (2005) demonstrates this.

In this case, the plaintiff was employed by the Open University of Hong Kong (previously known as the Open Learning Institute of Hong Kong) as an assistant professor, and her duties included monitoring the work of assignments and subsequently, to complete monitoring forms. The employee contract was terminated by the defendant, who paid the plaintiff three months wages in lieu of notice.

Serious deception

Ms Ng sued the university for wrongful termination on the basis that she was employed on superannuation terms and was entitled to security of tenure. There was a dispute as to whether the university was entitled to terminate the contract by notice.

As an alternative ground, the university relied on the serious dishonesty committed by Ms Ng that justified the instant dismissal.

The serious deception committed by Ms Ng on the university related to her failure to submit monitoring forms to the university.

In response to the query raised by the university as to the whereabouts of the monitoring forms, Ms Ng contended that she had duly completed the monitoring forms in a timely fashion and insisted that she had submitted the forms within a few weeks of having received her assignments.

Just cause

According to Ms Ng, given that she had moved offices twice, she might have lost some of the monitoring forms. She purported to have submitted the forms that were still retained by her. The forms related to the work done by Ms Ng in 1998 and 1999.

However, Ms Ng used a new version of the monitoring form which only came into existence in 2000. In other words, these served that Ms Ng could not possibly have completed the forms at the suggested time frame.

The defendant argued that the university, having terminated the plaintiff's employment by notice, was not entitled to rely on dismissal for cause. The court ruled that employers were entitled to rely on a cause that was not known to them at the time of termination.

The fact that a contract had been purportedly terminated by notice would not by itself preclude a subsequent reliance on dismissal for cause. The incidents of dishonesty could justify the dismissal although it was not given as a ground for the dismissal at the material time.

Note that an employer should consider whether he is able to prove misconduct on the balance of probabilities. Even so, he should consider whether the misconduct proven is sufficiently serious to warrant dismissal. This is obviously more difficult to prove. There are no hard and fast rules in determining whether cause for termination exists in any particular case, and there is no universal standard of conduct that employees are held to. Rather, every case is determined on its own merit and within its own specific factual context.

Q & A on summary dismissal
Q1 What are the grounds of summary dismissal permitted under the Employment Ordinance?
A1 Under the Employment Ordinance, "an employer may terminate a contract of employment without notice or payment in lieu":

a) if an employee, in relation to his employment:
i. wilfully disobeys a lawful and reasonable order;
ii. misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties;
iii. is guilty of fraud or dishonesty;
iv. is habitually neglectful in his duties; or

b) on any other ground on which he would be entitled to terminate the contract without notice at common law

Q2 What are the factors an employer should consider when he considers terminating an employee's employment summarily based on misconduct?
A2 The following is a list of relevant factors and considerations:
  • The nature and seriousness of the misconduct. Some kinds of misconduct (for example, theft of company property or fraud) by their nature go to the root of the employment relationship
  • The frequency of the misconduct - whether it was a single incident or a series of similar incidents
  • The seniority of the employee and his position within the organisation. Employees who hold positions of trust may be held to a higher standard with respect to certain types of misconduct than those who perform basic work
  • Whether the employer condoned this type of behaviour in the past, whether it was the behaviour of the employee or a co-worker
  • Whether the employee was aware, via warnings or acknowledgement of a company policy, that the type of behaviour would not be tolerated
  • Whether the employer was using the alleged misconduct as a mere pretext in order to avoid making severance/long service payment. Termination of a long-serving employee may be viewed by the court with scepticism
  • Whether the employee's out of character conduct was a result of, for instance, special medical conditions

Taken from Career Times 14 August 2009, p. B11

(Last review date: 23 August 2013)

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Disclaimer: The opinions expressed in this article are those of the contributor

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