Is poor performance a misconduct?

Is an employee’s poor performance a misconduct under the Labor Law of Cambodia? Can an employer dismiss a worker or employee for poor performance?

The answer can be YES or NO. It depends. I will further discuss on this topic in detail below.

The Labor Law of Cambodia does not define what is poor performance or misconduct, but it does state that the issue of worker’s capacity or behavior can become reasonable ground for dismissal. (Article 74, paragraph 2)

Accordingly, an employer can dismiss a worker if he or she has a valid reason in relation to worker’s capacity or misconduct. Consequently, if poor performance is due to worker’s poor capacity or sickness, it is not a worker’s misconduct. However, if poor performance is a result of carelessness or negligence of the worker in performing his or her duty, it is considered as misconduct of the worker.

Under the principle of valid reason and principle of proportionality, only the remarkably poor capacity or serious misconduct of the worker constitutes reasonable ground for dismissal. Hence, the worker who has remarkably poor capacity is subject to ordinary dismissal while the worker who has serious misconduct is subject to disciplinary dismissal.

Ordinary dismissal refers to termination of contract by employer on the ground other than serious misconduct of the worker. In this case, the dismissed worker receives prior written notice of contract termination, two-day leave per week during notice period, remaining seniority indemnity, compensation for unused annual leave, and last wage payment.

Disciplinary dismissal refers to contract termination on the ground of serious misconduct of the worker. The dismissed worker does not receive prior notice, two-day leave per week and remaining seniority indemnity. He or she can receive compensation for unused annual leave and last wage payment.

In conclusion, poor performance due to behavior of the worker is misconduct. Poor performance either due to capacity or misconduct can constitute reasonable ground for dismissal if the capacity of the worker is remarkably low or if the worker’s misconduct is serious.

Categories Employment and Labor Laws

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