Doctrine of Condonation

Condonation means forgiveness. There are two alternatives and mutually exclusive courses of action for the employer when there is a misconduct in employment:

Either, disciplining the employee for breaching the contract of employment; or

forgiving him.

An employer, who continues to keep an employee in employment with full knowledge that the employee has committed a misconduct, condones the employee and such waiver or permission prevents the employer from later punishing the employee for the same misconduct.

Two Essential requirements for doctrine of condonation to be applicable

 The employer must have full knowledge of the workman’s misconduct; and

 The employer must make an election to continue the workman in service

Unreasonable delay in taking disciplinary action can be construed as condonation.

The employer is deemed to have waived his right to punish the employee for the misconduct if there is unreasonable delay in taking action against the employee.

United Traction Co. Sdn. Bhd. Butterworth v Transport Workers Union [1986] ILR 1233,

What is reasonable time?

 Reasonable time does not mean that the employer needs to act immediately.

 When advice needs to be sought from senior managers who may not be available immediately.

 Or perhaps the employer wishes to consult legal opinion before he decides on the course of action

 So long as there is no undue delay the employer’s actions would not be construed as condonation.

Case sharing:

Koperasi Serbaguna Cuepacs Tanggongan Bhd. v. S. Vimala, IC Award 367 / 2000.

The employer had failed to take prompt action on a habitual latecomer, who was alleged to have been late on sixty-one occasions. His subsequent dismissal on a blanket accusation of persistent late coming was held to be unjust.

If the employer on discovering misconduct of the employee continues to employ him, he condones such misconduct and cannot punish him for the same offence.

Condonation is conditional.

Len Omnibus Co. Ltd v. Transport Workers’ Union [1991] 1 ILR 484

If an offence has been condoned and the offender is excused it is not open to the employer to subsequently punish him for the same offence. However, if the employee offends again, it is perfectly justifiable for the employer to consider the previous offences in determining the punishment for the subsequent offences.

Condonation is meant to be a conditional forgiveness i.e. subject to the implied condition of satisfactory future conduct, and therefore to repeat similar acts of misconduct is to have the cumulative effect as to justify dismissal.

Conclusion

1. When employee commits a misconduct, the employer has two alternatives, i.e to take disciplinary action or condone

2. There must be two elements in doctrine of condonation to be applicable:

 The employer fully aware the misconduct of the employee

 He chooses not to take disciplinary action means he condone the employee

3. Undue delay in taking disciplinary for misconduct committed can be construed as condonation.

4. Condonation is conditional. It is implied that condonation means forgiveness so long as the employee does not repeat again otherwise it will have cumulative effect justifying dismissal.