the art & science:handling domestic inquiry

8/19/2019 The Art & Science:Handling Domestic Inquiry

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The Art & Science:

Handling Domestic

Inquiry


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WHAT IS MISCONDUCT?

o Dictionary meaning is ….

• Improper behaviour

• Intentional wrongdoing or deliberate violation of a ruleof standard of behaviour

o In Industrial Law...

o An act or conduct that is prejudicial or likely to

prejudice the interests of the master or to the

reputation of the master

o Any conduct on the part of an employee inconsistent

with the faithful discharge of the duties of an employee

towards his employer, unless it be of trifling nature,

would constitute an act of misconduct


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3

Counselling

Verbal Warning

Written Warning

Final Warning

Freezing Increment/ Bonus (not contractual)

Transfer

Suspension

Salary Reduction

Demotion Dismissal

ypes ofpunishment


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MINOR MISCONDUCTincludes but is not limited to the following:-

Late-coming to work

Leaving the workplace early

Absenteeism, usually lessthan 2 days

Quarrelsome at work place

Carelessness causing minordamage to Company’sproperty

Removing or defacing ordestroying Company’snotices

Failure to wear uniform atwork place

Failure to furnish information

Malingering and feigningillness

Loitering during work hours

Smoking in restricted areas

Failure to follow safetyprocedure

Infringement of safetyregulation which does notcause damage to property orperson

Unnecessary wastage’s ofdocuments and materials

Abuse of Company’s property

Refusing to accept servicingof documents from Company

Negligence in the care oftools, equipment andapparatus

Failure to keep work placeclean and tidy

Obstructing other employees

from work.


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MAJOR MISCONDUCTincludes but is not limited to the following:-

Misappropriation ofCompany’s money orproperty

Theft/pilferage ofCompany’s moneyproperty

Fraud, dishonesty orfalsification

Cheating the Company

Fighting with otheremployees or visitors

Assaulting anotheremployee or visitor

Soliciting or acceptingillegal gratification

Participation in illegal strike

Wilful insubordination ordisobedience

Breach of fiduciary relationship

Spreading malicious rumoursabout the company

Gambling in the companypremises

Gross negligence and neglectof duty

Wilful damage of Company’sproperty

Sleeping while on duty

Possession of illegal weapon Riotous or indecent behaviour

Smoking in prohibited areas

Drunk while on duty


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BURDEN & STANDARD OF PROOF

The onus is on the employer to prove the caseagainst the accused

In doing so and even if the charge is criminal innature, the employer must satisfy the panel of

inquiry/court, on a balance of probabilities, thatthe accused committed the misconductaccused of.

TELEKOM MALAYSIA KAWASAN UTARA V.

KRISHNAN KUTTY SANGUNI NAIR & ANOR [2002]3 CLJ 314 [CA]


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Balance of Probabilities

“Imbangan Kebarangkalian”

The English case of Miller v Minister of Pensionsdescribes the civil standard of balance of

probabilities as follows:

“It must carry a reasonable degree of probabilitybut not so high as is required in a criminal case. Ifone can say “we think it more probable than

not” the burden is discharged.”


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Statutory Provision on Discipline

s. 14 of the Employment Act 1955 provides after due inquiry

the following punishments for misconduct:

Summary dismissal

Downgrading

“If the court is requested to rule whether in the absence of

provision in the contract of employment of the power todemote, an employer can demote, it is prepared to rulethat an employer may do so. It would agree with the

submission of learned counsel for the company that if acase merits dismissal but the employer chooses to demote

it was only being kind to the employee. The court seesnothing wrong in that.”

MEDIPRO MANUFACTURING (M) SDN BHD V. SITI AZMAHMAT TAIB [1999] 1 ILR 349


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Rules of Natural Justice

Meaning :-

The Rules of Natural Justice are the minimum

standards of fair decision-making imposed onpersons or bodies acting in a judicial capacity

It may be summed up as:

No man shall be condemned unheard.


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Two Basic Rules

Nemo Judex In Causa Sua

No man must sit in judgement in a matter in which he has either aninterest or is biased

Examples:

Inquiry officer is the complainant or was the investigation officer

Inquiry officer had previously punished the accused for anothermisconduct

Audi Alterem Partem The parties must be given a fair hearing

What constitutes “Fair Hearing”?

Prior NoticeSufficient time to answer the allegations

Full facts of the case should be clearly stated

Fair Opportunity

Accused to be permitted to bring his witnesses andcross examine Company’s witness.


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Stages of Disciplinary Process

Preliminary Investigation

Service of Show Cause Letter

Letter of Explanation From Accused

Notice of Inquiry

Suspension Pending Inquiry

Appointment of Panel Members

Conduct of Inquiry

Panel Decision & Report

Disciplinary Action


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Writing a Show Cause Letter

Avoid statements which prejudged the case.

Give full particulars.

Charge should be specific.

Include 1/2 pay or full pay suspension

Refrain from generalising

Helps prosecutor prepare his case.

Accused might admit guilt at this stage


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Notice of Inquiry

Why?

- Accused may have denied allegations in explanation or;

No explanation offered

Not answering the charge

Content of Notice of Inquiry

Charges – may be amended based on reply to SCL

Date, time & place of inquiry

Permit accused to produce witnesses 1/2 or full pay suspension pending inquiry

Failure to attend - ex parte hearing

No external parties permitted.


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Qualification & Appointment of

Panel Members

No prior knowledge of facts of the case

Not immediate superior

No personal ill feeling

No involvement in any previous disciplinary action

Not a HR Department Staff

Ideal number is three

IO should not be panel member

Panel to be extended copy of charge sheet


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The Role of Chairman

•To have overall control of the running of the inquiry.

• To ensure that the alleged employee understands thecharge by reading and explaining its contents at thestart of the inquiry

• To allow the prosecutor, the alleged employee or his

union official to submit their evidence.• To ensure that all witnesses are produced to testify in

front of the Panel.• To keep all records, evidence and exhibits adduced

during the inquiry.• To delegate specific duties to the panel members as

he thinks fit in the conduct of the inquiry.• At the end of the inquiry, he is to deliberate on the

case with the panel members and make a finding.


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DI - Role of Witnesses

• The role for both the employer and thealleged employees witnesses testifyingduring the inquiry is to answer questions asdirected to them.

• They should state what they personally saw,or know about the case.

• They should not fabricate evidence for

whatever reason.

• Their role is to tell the truth.


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DI - Role of the Secretary

• To write down all proceedings verbatim i.eword for word, throughout the course of theDomestic Inquiry.

• Once complete to pass on all the notes ofinquiry to the Chairman.

• To ensure that there is no dispute from the

defense, the notes, should be countersigned by the alleged employee.


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Inquiry Proper

Introduction

Ground rules

Read out & explain

Presentation of

Company’s case

Examination in Chief

Cross examination

Re examination

Panel questions

Presentation of defence

Examination in Chief /Evidence in Chief

Cross examination

Re examination

Submission

Accused

Company

Accused

Panel Deliberations

Report writing

the art & science:handling domestic inquiry

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