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Written Warning

MODEL PRO-FORM FOR GENERAL CHARGE-SHEET

To
………………………
………………………
It is reported against you that on ________(date) at ________(time) you_____ (mention clearly the act or acts of misconduct alleged). The acts, as alleged above to have been committed by you, amount to misconduct which, if proved, would warrant serious disciplinary action against you.
Accordingly, you are hereby required to show cause within _______ days of the receipt hereof as to why you should not be dismissed or other wise punished.Should you fail to submit your explanation as required, It will be presumed that you admit the charges and have no explanation to offer and the matter will be disposed of without any further reference to you. Since the charges, leveled against you, are of grave and serious nature, you are herby suspended pending further proceedings and final orders in the matter. The receipt of this letter should be acknowledged.
AHTOHRISED SIGNATORY

MODEL SHOW CAUSE NOTICE

To
Mr………………………………..
Emp.No…………………………
Designation:…………………..
You have been absenting from duty without leave since………..and as such services are liable to be terminated according to the rules of the company.
You are, therefore, called upon to show cause why your services will not be terminated under Clause ……….of the State………Model Standing Orders Act OR Certified Standing Orders rules of the company / establishment for
such continued / habitual absence.

AUTHIRISED SIGNATORY

MODEL SHOW CAUSE NOTICE

To
Mr………………………………..
Emp.No…………………………
Designation:…………………..
It has been reported against you as under : On…………at……………….you,…………..……………..(details of alleged misconduct) The act(s) alleged to have been committed by you amount to misconduct. Accordingly, you are hereby called upon to submit your written explanation and show cause why disciplinary action should not be taken against you.
Your explanation must reach the undersigned within 48 hours. Should you fail to submit your explanation required,the matter will be disposed of without any further reference to you.

AUTHORISED SIGNATORY

SIMPLE WARNING LETTER

To

Mr………………………………..
Emp.No…………………………
Designation:…………………..

WARNING

Your explanation dated ………….. in reply to show cause notice dated………. Has been found to be unsatisfactory. You are accordingly hereby warned.
You are further advised in your own interest to be cautious and not to repeat such an act in future.
AUTHORISED SIGNATORY

STERN WARNING LETTER

To
Mr………………………………..
Emp.No…………………………
Designation:…………………..

STERN WARNING

Your explanation dated …..in reply to show cause notice /letter of charge dated…….has been found to be unsatisfactory.The gravity of misconduct committed by you is such that it warrants severe punishment. However, we are taking a lenient view this time and have decided to award you this
stern warning.Should you repeat any such thing in future or commit any
other misconduct we will not hesitate to take strict disciplinary action against you.
AUTHORISED SIGNATORY

WARNING LETTER FOR HABITUAL IRREGULAR ATTENDANCE

To
Mr………………………………..
Emp.No…………………………
Designation:…………………..
Your leave record shows that you are in the habit of absenting off and on and in spite of the fact that you have been verbally advised and are warned for improving your attendance you have not shown any improvement. You were again absent on ………. Without any authorization. You are being given another opportunity to correct yourself and in case you do not show any improvement we will have no alternative but to take a serious view of your action. On your above absence you are being strongly warned.
AUTHORISED SIGNATORY

WARNING LETTER FOR INSUBORDINATION

To
Mr………………………………..
Emp.No…………………………
Designation:…………………..
It has been reported that today at 09.00a.m when your supervisor asked you to do…………………you refused to carry out the instructions and shouted at him. In your explanation you have admitted your mistake. Although drastic action could have been taken against you forinsubordination, but with a view to reform you, you are being given another opportunity and we hope you will be very careful in future in such matters. You are being warned.
AUTHORISED SIGNATORY

MODEL PRO-FORMA FOR GENERAL CHARGE-SHEET

To
Mr./ Ms……………………..
Emp.No…………………….
Designation………………..
It is reported against you that on ________(date) at ________(time) you_____ (mention clearly the act or acts of misconduct alleged).The acts, as alleged above to have been committed by you, amount to misconduct which, if proved, would warrant serious disciplinary action against you. Accordingly, you are hereby required to show cause within _______ days of the receipt hereof as to why you should not be dismissed or other wise punished.
Should you fail to submit your explanation as required, It will be presumed
that you admit the charges and have no explanation to offer and the matter
will be disposed of without any further reference to you.Since the charges, leveled against you, are of grave and serious nature, you are herby suspended pending further proceedings and final orders in the matter.
The receipt of this letter should be acknowledged.
AHTOHRISED SIGNATORY

PRO-FORMA FOR NOTICE FOR SUSPENSION ORDER PENDING ENQUIRY:

To
Mr./ Ms……………………..
Emp.No…………………….
Designation………………..

Whereas the charges amounting to gross misconduct (s) and indiscipline againt you have been leveled in accordance with Company Service Rules /Standing Order No……as per charge-sheet dated………..sent to you.Now, therefore, you are hereby placed under suspension with effect from………under clauses………..of the Factory / Company Rules / Standing Orders. Your suspension has been considered necessary in order to maintain proper discipline in the Factory / Company / Establishment and to conduct proper enquiry against you.You will be entitled to receive subsistence / suspension allowance of Rs……. During the period of suspension.

AHTOHRISED SIGNATORY

PRO-FORMA FOR A LETTER TO THE ENQUIRY OFFICER FOR
CONDUCTING ENQUIRY AND CONVEYING HIS ACCEPTANCE

To
Mr. / Ms…………………………..
……………………………………
Sir / Madam,

The Management has issued a charge-sheet to one of the employees calling for his explanation thereto. The explanation, has been found to be as unsatisfactory. The Management has decided to hold an enquiry by giving an opportunity to the delinquent employee to defend himself.
The Management has decided to appoint you as an Enquiry Officer and we need your formal approval which may kindly be conveyed at your earliest.

Please be assured that the Management will extend full co-operation in this context and Mr. / Ms……………. Has been appointed as its representative.

Thanking you,
Yours Sincerely,
For & on behalf of the Management
Authorised Signatory

CC: Mr./ Ms.—————————, you are appointed as Management’s
Representative to co-ordinate with the Enquiry Officer.
Note: After the disciplinary authority decides to order an enquiry, it may hold the same itself or appoint an Enquiry Officer for that purpose in the absence of a provision to the contrary in the in the service or discipline rules concerned. The Enquiry Officer functions only as a delegate of the disciplinary authority, whose conclusions and recommendations may or may not find favour with the disciplinary authority. The prerequisites of a person to be Enquiry Officer may thus be summarized as under.:

(a) The appointment of the Enquiry Officer should be made by an authority competent totake disciplinary action against the workman concerned.
(b) Before making the appointment of a person to act as Enquiry Officer, it must be seenthat he is a person with open mind, a mind which is not biased against the workman concerned.
(c) A person to be Enquiry Officer must be a Responsible Officer or High Status commanding respect from the workman. He should not be a person of lower status and should not be judge in his own cause.

PRO-FORMA FOR A NOTICE TO THE CHARGE-SHEETED EMPLOYEE
FOR HOLDING ENQUIRY:

To
Mr./ Ms………………….
Emp.No…………………
Designation……………..
Ref: Your explanation dated ………………..in response to the charge-sheet
dated………………

We are in receipt of your explanation dated…….in response to the charge sheet dated……..After careful consideration of your explanation, which has been found unsatisfactory, it is considered desirable and necessary to conduct an enquiry into the charges leveled against you. You are hereby informed that the enquiry will be conducted by Sri……………….who has been entrusted with assignment to hold the enquiry.You are, therefore, directed to attend and participate in the enquiry proceedings with all the necessary document, evidence and witness (es) that you may seek to rely upon in your defense. You are further intimated that if you fall to attend the enquiry proceedings without sufficient cause, the enquiry will be proceeded ex-parte without notice to you. For & on behalf of the Management
Authorised Signatory

DRAFT OF NOTICE AFTER RECIEPT OF ENQUIRY REPORT

To
———————-
———————-
———————-
This has reference to the charge sheet dated __________ issued to you and
the enquiry held thereafter. We have since received the report of the enquiry
officer, wherein the charges leveled against you have been proved.
Before we consider the findings of the enquiry officer, you are hereby given an opportunity as to what you have to say o the findings. You are given a period of three days to submit your reply. In case we do not hear from you within the stipulated time period, necessary action will follow, without further reference to
you.
Manager/ Competent Authority

NOTICE OF DISCHARGE TO AN EMPLOYEE

To
_______________
_______________
_______________
This has reference to the charge sheet dated_________ issued to you &
enquiry held thereafter. We have duly considered the report of the enquiry
officer and are satisfied that the charges as leveled against you have been
proved against you in the enquiry.
In view of the serious nature of misconduct committed by you & fully proved
against you, it has been decided to dispense with your services. However, on
compassionate grounds considering extenuating and aggravating
circumstances, the management, instead of dismissing you from services has
decided to impose lesser punishment of discharge on you with immediate
effect from____________ Your final payment of dues including wages for 1 month in lieu of notice will be made to you in the office on or before____________ during office hours on any working day after you hand over the charge.

Manager/ Competent Authority

ORDER OF DISMISSAL

To
_______________
_______________
_______________
We have received the enquiry report that was held on_______________
against you consequent to the charge sheet dated______________. After
going through the proceedings of the enquiry, we find that the charges have
been proved against you.Since the charge (s) committed by you is/are of serous nature, the appropriate punishment is dismissal from service. You are therefore, hereby dismissed from service with effect from ____________ you can collect your dues, if any,and settle your account on any working day during the office hours from
Accounts Department.

Manager/ Authorised person with designation

C.C : – The Accounts Deptt. for information if necessary action.
ORDER OF REDUCTION IN RANK

To
_______________
_______________
_______________
Your past conduct and service records reveal that you have no initiative or
sense of responsibility. Frequently, you have stayed away from duty &
neglected your work. Time & again you were warned/ reprimanded but there
has been no improvement. We tried our best to motivate you to take interest
in the work & to observe regularity & punctuality but of no avail. You have
been as careless as ever & have refused to perform your duties seriously.
Your carelessness has not caused the work to suffer but it is also likely to
effect the discipline among other members of the staff.Under circumstances we are of the concerned opinion that the post held by you entails greater responsibility that you can shoulder as you lack necessary initiative, which is required for the post. Therefore, we hereby give you 1- month notice to relieve you from the present post and instead assign you post
of____________ with immediate effect from_______________. This post
entails lesser responsibility & we feel that you will be able to perform your duty more satisfactorily in this capacity. However, you will be entitled to only those benefits and salary that the post caries.We must also make it clear that if you fail to show marked improvement & continue to conduct yourself in the way you have been doing, we shall be constrained to dispense with your services after holding enquiry, if necessary.Manager/Authorized person with designation

C.C: – The Accounts deptt for information & necessary action.

ORDER OF WITHOLDING ANNUAL INCREMENT/(S)

To
_______________
_______________
_______________
In continuance of the charge sheet dated_____________ issued to you & the Enquiry held into the charges, this is to inform you that we were satisfied that you are found guilty of the charges leveled against you and severe punishment including dismissal/discharge can be inflicted upon you.
However, on going through your past record & considering the nature of the misconduct by you the undersigned decide that this time a milder punishment will meet the ends of justice. Therefore, it has been decided to withhold your annual increment for___________year/years.During the period for which your annual increment is being withheld the management will watch your performance and conduct and if found satisfactory the grant of increment/ increments to you will be reconsidered onthe expiry of the said period.
Manager/ Authorized person with designation
C.C: – The Accounts deptt for information & necessary action.

ORDER OF IMPOSING FINE AS A PUNISHMENT

To
_______________
_______________
_______________
This is in continuance of the charge-sheeted dated__________ issued to you & the enquiry held in pursuance thereof. As a result of the enquiry, the
management is satisfied that the charges leveled against you amply proved.
On the bases of the charges proved against you, dismissal from service would be rather appropriate in the ordinary course but in consideration that this for the first time that you have been found guilty of the charge, the management decides to afford you an opportunity to improve yourself & instead of awarding the extreme penalty, impose upon you a fine of

Rs._________ as
punishment.
Manager/ Competent Authority
Date: –
C.C: – The Accounts Dept

PROFORMA SUGGESTED FOR A CHARGE SHEET TO AN EMPLOYEE
FOR HABITUAL ABSENTEEISM

TO
Following are the charges against you:
Perusal of your attendance record reveals that you are in habit of absenting
yourself from your duties without any information and proper sanction of
leave. Your absentee spells are on an increase and your absentee record for
the preceding ________years are reproduced hereunder.
MONTH DATES NO. OF
DAYS OF
UNAUTH
ORIZED
ABSE
NCE
________ __________
________________
XXX XXX XXX
XXX XXX XXX
You have been verbally advised to improve you attendance record and not to
indulge in unauthorized absence from duties. But despite these verbal
advises/reprimands and assurance given by you, you have not shown any
improvement in your attendance.The above act of habitual absence on your part constituted major misconduct under certified standing orders of the company applicable to you and also affects the work of the company.You are hereby required to submit your explanation, if any to this chargesheet
within 3 days from its receipt failing which it will be presumed that you
have no explanation to offer and the management will be free to take any
action that may be deemed proper in you case.
For _________________________
(Authorized Signatory)

An Overview of A Domestic Enquiry

A.      INTRODUCTION

 

1.       A domestic inquiry is an internal hearing held by an employer to ascertain

whether an employee is guilty of misconduct.  The purpose of a domestic
inquiry is to find out the truth of the allegations made against the workman.

 

2.       The Industrial Court, in the course of adjudicating whether a dismissal is

without just cause or excuse within the context of Section 20 of the Industrial
Relations Act 1967, does not merely examine whether there were proper
grounds for the employer to terminate the services of the employee but also
examines whether the process by which the employee was terminated was fair
or unfair.

 

3.       This aspect of “procedural fairness” in the taking of disciplinary action, against

an employee may often be a crucial factor in deciding whether the dismissal will be upheld by the Court.

 

4.       It is therefore, imperative to recognise that upholding a dismissal in the

Industrial Court involves satisfying 2 criteria:

 

 

(a)      That there were proper grounds for terminating the employee;

(b)      That the procedure by which the employee was terminated was fair.

 

5.       In conducting a domestic inquiry the rules of natural justice must be adhered

to.  Justice must not only be done but must be seen to be done; the “twin
pillars” of natural justice being “No person shall be condemned unheard” and
“No person shall sit in judgment in his own cause or in any in which he is
interested”.

 

 

 

 

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6.       It is in this context that the importance of conducting a proper domestic inquiry

assumes significance.

 

 

7.       The domestic inquiry should not be regarded by the employer as a “mere

formality” nor an unnecessary inconvenience but an integral part of the disciplinary process whereby the employer can establish that the termination of the employee was with just cause or excuse.  The objective of holding a domestic inquiry is twofold.  Firstly, to give the opportunity to the employer to prove  the  charges  of  misconduct  against  a  delinquent  employee  before punishment  is  meted  out  and  secondly  to  give  the  employee  sufficient opportunity to defend himself/herself.

 

8.       Rather than view the domestic inquiry as burden on the management, and an

unnecessary waste of time, resources and expense, the employer, should view the process of the inquiry as a means to show that every possible means was made available to avail the employee of meeting the charges against him and, if possible, clearing himself.

 

 

 

B.       POSITION UNDER THE EMPLOYMENT ACT 1955

 

9.       Under Section 14(1) of the Employment Act, 1955, it is stated that an

employer may, AFTER DUE INQUIRY, dismiss the employee or take other disciplinary action including downgrading and suspension of the employee on grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of service.

 

 

 

 

 

 

 

 

 

 

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10.     The  effect  of  the  incorporation  of  the  term    “DUE  INQUIRY”  into  the

provisions of Section 14(1) of the Employment Act 1955 was considered in
detail in the recent Federal Court decision of Said Dharmalingam v. Malayan
Breweries (Malaya) Sdn Bhd (1997) 1 CLJ 646 where the Court stated as
follows:

 

“In R. v. BBC, ex parte Lavelle (1982) 1 RId? 404, Woolf J indicated,
albeit obiter, that when there is a procedure for dismissal in an employment
not covered by statute at all, employers must comply with that procedure
for the dismissal to be valid. If the contractual procedure was infringed an
injunction should issue to prevent the dismissal. This view was partly based
on the notion that employment protection legislation had substantially
changed the position at common law, so that ‘the ordinary contract
between master and servant now has many of the attributes of an office.’

 

In the present case, there is a statutory requirement, to wit, s. 14(1) of the
Act, providing for the elementary safeguard of the right to “due inquiry” by
the employer.  It follows, that at least, prima facie, a dismissal in breach of

s. 14(1) would be void.

 

Having said that, we must add, that when, as here, a claimant is an
employee within the meaning of the Act, he has by s. 14(2) thereof a
statutory right to “due enquiry” by his employer, and so, the approach of
the Industrial Court or for that matter the High Court, in considering the
question whether the claimant had been dismissed without just cause or
excuse, would be, to examine the decision not just for substance but for
process as well.”

 

 

 

 

 

 

 

 

 

 

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11.     The decision of the Federal Court in Said Dharmalingam clearly states in

respect of employees governed by the Employment Act that unless there is due
enquiry prior to dismissal for misconduct, the dismissal can be struck down by
the Industrial Court even if the employer can show sufficient grounds to
dismiss. Hence, “procedural fairness” is crucial in successfully upholding the
dismissal.

 

12.      It should perhaps be noted that an earlier Federal Court decision in Milan

Auto Sdn Bhd v Wong Sen Yen (1996) 1 AMR 49 held that the requirement of “due inquiry” before dismissal in Section 14(1) of the Employment Act was not mandatory and, even if there was a defective inquiry, it was “curable” in the sense the Industrial Court could still enquire into the decision to dismiss and uphold the same if proper grounds were made out.

 

13.      It is respectfully suggested that the decision in the Milan Auto case can be

explained on the basis that there, the Industrial Court wrongly struck down a
dismissal without inquiring into the merits of the dismissal which it was
required to do under Section 20 of the Industrial Relations Act, 1967.
However, given that the most recent pronouncement on the question of due
inquiry, is as set out in the said Dharmalingam’s case, it is respectfully
suggested that all prudent employers should, when dealing with complaints of
misconduct of employees governed by the Employment Act, ensure that a
proper inquiry is conducted or run the risk of dismissal being struck down.

 

 

 

C.       POSITION    OF    EMPLOYEES    NOT    GOVERNED    BY    THE

EMPLOYMENT ACT, 1955

 

14.      With regard to these employees, the general rule that a failure to hold a

domestic inquiry or the holding of a defective inquiry will not automatically vitiate or nullify the dismissal still applies.

 

 

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15.     This was the approach taken by the Federal Court in the case of Ong Yuen

Hock v Syarikat Hong Leong Assurance Sdn Bhd (1995) 2 MLJ based on
the earlier leading decision in Dreamland Corporation (M) Sdn Bhd v.
Choong Chin Sooi (1988) 1 MLJ.  Essentially, these decisions state that even
if the domestic inquiry held was defective, it is still open to the employer to
satisfy the Industrial Court that the dismissal was proper on the merits.

 

16.      It is respectfully suggested that as a matter of good industrial practice and

irrespective of which the employee is governed by the Employment Act or not,
a domestic inquiry should be held whenever a complaint of misconduct is
brought to ensure that the employee is accorded fair treatment in answering the
charge.

 

17.     We shall now examine briefly the various stages of the domestic inquiry and

the necessary procedures to ensure that no challenge can be successfully taken

to claim the inquiry as unfair.

 

 

 

D.      BRIEF GUIDELINES FOR CONDUCTING A PROPER INQUIRY

 

18.     It is essential to keep bear in mind, at all times, that there are no fixed criteria

as to what constitutes a proper inquiry. Every case must necessarily depend on the particular circumstances and the degree of formality and rules adopted would also be determined by the prevailing circumstances.

 

19.      What is of utmost importance, however, is that the basic principles of natural

justice are observed. These may be summarised as follows:-

 

 

(i)       That the employee is given an opportunity to know, in full, the charges

made against him.

 

 

 

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(ii)      The employee has reasonable opportunity of defending himself against

the charges.

(iii)     The management team which sits as the Inquiry Panel should be

unconnected with the events and circumstances surrounding the charge:

 

 

20.      It would be noticed that these are not simply legal requirements but basic

concepts of fairness and justice designed to ensure that the employee is given a proper hearing to answer the charges made against him.

 

 

 

E.       PROCEDURE PRIOR TO INQUIRY

 

E1.    INVESTIGATION OF COMPLAINT

 

21.      Normally, the source of the complaint comes from the employee’s immediate

superior or a fellow employee.

 

 

22.      It is essential to investigate the complaint as soon as possible. This has the

double advantage of obtaining the relevant evidence before it becomes difficult
or impossible to trace and also to avoid any allegation by the employee
subsequently that the employers have “condoned” the alleged misconduct.

 

23.      It is always useful to interview all parties concerned in the complaint and have

their statements recorded. In charges involving financial irregularities and misconduct, it is best that an internal audit be conducted and full and comprehensive report be compiled. A difficulty can sometimes arise, if the, complaint  is  from  an  outside  source  i.e.  not  within  the  employment, organisation and such person is reluctant to give any written statement to substantiate his complaint. There could be difficulties if the employee, when confronted, makes a total denial of the allegation.

 

 

 

 

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24.     To obviate the difficulty, it is suggested that the outsider complainant (i.e. the

third party), should be persuaded to reduce his complaint in writing so that
disciplinary action can be instituted against the employee concerned. At the
same  time,  the  investigation  officer  should  ascertain  if  other  supporting
evidence from within the Company can be obtained to corroborate or support
the complaint so that the third party’s complaint does not stand by itself.

 

25.      It is also important that the investigating officer is unconnected with the

allegations and not a person who is likely to be selected to sit on the Inquiry
Panel.  If the investigation involves some special expertise and skill or
understanding of a particular area of the operations, a suitably qualified person
well versed in the area should be approached to assist in the investigation.

 

E2.    SHOW CAUSE LETTER

 

 

26.      If the investigation establishes a prima facie case justifying the complaint

which calls for an explanation from the employee, the employer should then proceed to issue a show cause letter.

 

27.      The letter should be drafted in clear and unambiguous language setting out all

the allegations to which the employee is requested to “show cause”.  It should
normally be signed by the Personnel Manager or Head of the Department.
Where the charges are of a technical nature, i.e. misappropriation or breach of
trust, it is best to, draft the same in the format of a charge in a criminal case.
This will immediately highlight the elements of the offence that need to be
proved and would also provide for precision in the drafting.  A vague or
ambiguously worded charge in a show cause letter is often indicative that the
employers are unsure of the circumstances giving rise to the charge or even
worse, create an impression that the charges are not bona fide.

 

 

 

 

 

 

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28.     Where  possible,  the  charge  should  specifically  refer  to  which  rules  or

regulations, that have been breached. If no specific rules have been breached, it is best to state the charges constitute either a breach of both the express and/or implied terms of the contract of employment.

 

29.      The show cause letter should be confidential and preferably delivered to the

employee personally. If this is not possible, the letter should be sent to the employee’s address.

 

E3.    SUSPENSION DURING PERIOD TO SHOW CAUSE

 

 

30.      Care must be taken that the period of suspension and the amount of pay the

employee receives during the period of suspension are in accordance with the
provisions of the Employment Act or relevant Collective Agreement, where
applicable.

 

31.      If extension of the period of suspension is required to complete investigations,

especially upon receipt of the employee’s reply to the show cause letter, the employee must be notified accordingly.  It is advisable to ensure that the employee receives his full salary for any extended period of suspension.

 

32.      It is normal that suspension is invoked where the presence of the employee is

likely to jeopardise the safety and discipline of the Company and hence, should only be resorted to where charges of major misconduct are made or there are several charges.

 

33.      Furthermore, the letter of suspension should not give instructions that the

employee should stay at his place of residence during working hours as such an
order amounts to house arrest and is unlawful. Malayan Banking Berhad v.
Association of Bank Officers Peninsula Malaysia (Award 347 of 1986)

 

 

 

 

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34.     Depending on the reply received from the employee, the Company may

proceed to institute a domestic inquiry. This may be necessary even if an employee, in his reply to the show cause letter, gives a vague response and appears to admit to only some of the charges or just part of the charge.

 

E4.    THE DOMESTIC INQUIRY PROPER

 

35.      The first step is to send a notice of the domestic inquiry to the employee

concerned. The notice should give particulars of the date, time and place of the inquiry and should stipulate that the employee would be entitled to cross-
examine the employer’s witnesses and may, himself, produce witnesses or documents to rebut the charges.

 

36.      Where there are several charges of a detailed nature, care must be taken to

ensure that the period of time between the notice of domestic inquiry and the actual inquiry is of a reasonable period to prepare his defence.

 

37.      In the meanwhile, the employers should proceed to select the panel of

members for the inquiry. The basic criteria for the selection should be:

 

 

(a)      Officers who are not involved directly with the investigation and

circumstances of the case.

(b)      Officers should normally be of a rank or status above the employee

facing the disciplinary charges.

(c)      The Chairman should be adequately well versed with the, general,

legislation involving employment and the Industrial Court awards.

 

 

38.      Of particular importance is the rule that the Panel should not be seen to be

biased or even appear biased. In a number of cases the Industrial Court has held that the element of bias vitiates the fairness of the dismissal.

 

 

 

 

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39.     In Oriental Bank Bhd v Zulkiflee b. Hassan, Kaiang (1986) 2 ILR  1332 the

Claimant was dismissed for breach of the express terms and limit of authority
by which he was bound and/or breach of general duty of care obligatory upon
him.

 

40.      The Claimant contended that the inquiry held was not carried out properly and

his dismissal was unlawful, mala fide and amounted to an unfair labour
practice.

 

41.      In this case, the Chairman of the Inquiry was fully informed of the results of

the  investigation  conducted  by  the  investigator.  Subsequently,  he  had  a
meeting with the Claimant before the Inquiry where the Claimant gave his own
story. Another member of the inquiry was also present during the meeting. The
Chairman and the member knew all the facts of the allegation prior to the
inquiry.

 

42.      It was held that there was an element of bias because some of the members of

the inquiry had known the facts of the allegations.  Although the claimant was guilty of gross negligence and was rightly dismissed, since there was bias in the inquiry the Claimant was entitled to backwages.

 

43.      Similarly, care must be taken to ensure that the Panel does not appear overly

keen to question the employee. This role should be left to the employer’s
representative presenting the case.  While the Panel may always clarify points
arising during the course of the proceedings they should not turn the inquiry
into an inquisition.

 

 

 

 

 

 

 

 

 

 

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E5.    NOTES OF INQUIRY

 

44.      All statements given in the inquiry should be carefully recorded either by the

Panel Member or a member of staff for that purpose. Further, the notes should
be typed up and made available for the employee to counter-sign to avoid any
challenge subsequently by the employee. See OYL Condoir Industries Sdn
Bhd v. Kulijan a/i Muthusamy & 2 ors (1992) 2 ILR 33 where the Court
held that the domestic inquiry was conducted unfairly and unjustly as the
Claimants were not allowed to call witnesses, no notes of proceedings were
recorded nor made.

 

45.      The general procedure at the inquiry would normally be as follows:

 

The Charge must be read to the employee and explained to him at the
commencement of the inquiry. If he admits the charge, he should be given the
opportunity to express the circumstances that led him to commit the offence
and mitigates his case. The Chairman then will ask the officer presenting the
case to briefly state the facts of the case including how the offence was
committed to enable the Panel to recommend the appropriate punishment or
continue with the proceedings.

If the employee concerned is absent without an explanation offered, the case
may still be heard in his absence and the outcome of it must be communicated
to him.

 

Any witnesses, called by either party to give statements, is to be subject to cross-examination  by  the  other  party.  In  other  words,  there  will  be  an examination in chief by one party, cross examination by the other party and re-
examination by the former party of witnesses. Statements made by these witnesses must be recorded and signed by them. They must not be in the room where the inquiry is being held until called in by the Chairman.

 

 

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46.     It must also be noted that while an employee may be accompanied by a Union

representative at the inquiry, he is not entitled to insist on legal representation.
Petroleum Nasional Bhd v. Mohd Radzuan B. Rarnli 1993 1 ILP. 100 and
Sime Darby Plantation Sdn Bhd v. Wong Chu Meng 1983 2 ILR 210.

 

 

 

E6.    PROCEDURE SUBSEQUENT TO INQUIRY

 

47.      After the inquiry, the Chairman should discuss the case with the Panel

Members and decide upon the merits of the case.

 

 

48.      Findings should be contained in a report which should be based on the material

and evidence produced at the inquiry giving reasons in brief for conclusions on the charges.

 

49.      In Standard Chartered Bank v. Cliff a/l James (1991) 2 ILR 1168, the

Court held that as no finding of the inquiry was recorded at the end of the notes of inquiry, this effectively invalidated the inquiry and the Court was entitled to disregard the notes of inquiry.

 

50.      The Report, once finalised, is then sent to the appropriate executive or officer

in  management  for  taking  the  requisite  action.  Unless  it  is  expressly empowered to do so, the Panel should refrain from determining what the punishment should be meted out although they may merely recommend disciplinary  actions.  The  reason  is  that  the  question  of  meting  out  the appropriate punishment does not involve the deliberation of the finding of the charges but other factors such as the employee’s previous records, warnings etc. which would not normally be available to the Panel.

 

 

 

 

 

 

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51.     Once management is in a position to fully consider all the relevant factors, then

the appropriate disciplinary action can be taken. If dismissal is decided, the employee should be informed as soon as possible and also on what grounds he is being dismissed. If there is a right of appeal within the disciplinary procedures against the decision, the employee should be directed to that fact and informed of the period and to whom he may exercise his right of appeal. In this regard, the decision of Said Dharmalingam is again of importance. In that case, the Court held that it is incumbent on an employer to provide the employee an opportunity to make a plea in mitigation.

 

52.     As was stated by the Court:

 

“Due inquiry for the purposes of Section 14 of the Act includes the right to make representations against the punishment proposed as a result of adverse findings by a domestic body”

The Court, however, held that a plea of mitigation is not necessary where the employment contract states that dismissal mandatory upon a particular finding or where the misconduct is so grave that no useful purpose would be served by a plea in mitigation.

 

53.      Once all avenues for internal appeals are exhausted and assuming that the

employees appeal is rejected, the employee should be so informed. It is normal to pay the employee whatever monies due subject to income tax clearance and request that all company property be returned.

 

54.      If these procedures and guidelines are adhered to, an employer should be well

on his way to being able to defend successfully an unfair dismissal complaint in the Industrial Court.

 

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