By Faudzil Harun - Trans Management Consultants (TMC)
(a) the evidence of the opposite side should be taken in the workman’s
As the burden of proving the dismissal is fair on the employer, employers
need to get their facts right and should not make decision on hearsay evidence
or on mere suspicion. If such hasty decision were made, the employer would
regret his actions if his decision comes under the scrutiny of the Industrial
Court. There are far too many cases where the employee is obviously guilty but
because the employer had failed to follow acceptable procedures, he finds that
his decision is reversed by the court.
Domestic Inquiries into the misconduct of employees arises out of two situations, the requirement of the Employment Act, 1955 and the Rule of Natural Justice :
Domestic Inquiries into the misconduct of employees arises out of two situations, the requirement of the Employment Act, 1955 and the Rule of Natural Justice :
Situation 1
- Requirement of the Employment Act, 1955
The Employment Act, 1955 which provides protection for employees under the Act provides the machinery for the investigation and punishment of offenders at the place of employment.
The Employment Act, 1955 which provides protection for employees under the Act provides the machinery for the investigation and punishment of offenders at the place of employment.
Section 14(1) of the Act requires the employer to carry out a “due inquiry” in
respect of the misconduct committed by an employee before the employer can
impose a punishment. This is a statutory obligation imposed on the employer.
In Hotel Perdana Sdn Bhd v Noor Asiah Mohd Yusof, I/C Award 412/98, the court held that : “The purpose of a domestic inquiry is unlike that of a court hearing. It is not merely sitting and examining witnesses in an inquiry room, like a court of law which has no “investigation functions”’ Its purpose rather is also to investigate, ascertain and probe all facts placed before it”.
In Hotel Perdana Sdn Bhd v Noor Asiah Mohd Yusof, I/C Award 412/98, the court held that : “The purpose of a domestic inquiry is unlike that of a court hearing. It is not merely sitting and examining witnesses in an inquiry room, like a court of law which has no “investigation functions”’ Its purpose rather is also to investigate, ascertain and probe all facts placed before it”.
Situation 2
- Rule of
Natural Justice
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly".
Natural justice had ruled that “no one shall be condemned unheard.”
In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly".
Natural justice had ruled that “no one shall be condemned unheard.”
The Rules of Natural Justice also require that :
(a) the evidence of the opposite side should be taken in the workman’s
presence;
(b) he should be given the opportunity of cross examining the witness
(b) he should be given the opportunity of cross examining the witness
examined by the opposite party;
(c) no material should be relied on against him without his having been given
(c) no material should be relied on against him without his having been given
an opportunity of explaining the
same.