Faudzil @ Ajak

Faudzil @ Ajak
Always think how to do things differently. - Faudzil Harun@Ajak

24 April 2013

HR MANAGEMENT - The Principles of Natural Justice

By Faudzil Harun - Trans Management Consultants (TMC)

















The principles of natural justice are those rules, which have been laid down by the courts as being the minimum protection of the rights of the employee against the arbitrary procedures that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights.


The principles of natural justice in the context of industrial disciplinary may be stated as follows :


1.   That the workman whose conduct is being inquired into must have 
      reasonable notice of the case he has to meet.


2.   That he must have reasonable opportunity of being heard in his own 
      defence according to the maxim’audi alteram partem’ (principle of natural 
      justice where the judge should hear both sides) and this includes, inter 
      alia, the opportunity to face and challenge his accusers, witnesses and 
      whatever evidence there is against him.

    
      In Syarikat Great Eastern Life Assurance Bhd v Kesatuan Sekerja 
       Kebangsaan Pekerja-Pekerja Perdagangan, I/C Award 21/69, it was 
      held that what this entails is for the employee who is to be dismissed to 
      be informed of the charges against him to enable him to give his   
      explanation.

3.   That the hearing must be by an impartial tribunal e.g. a person who is 
      neither directly or indirectly the party to the case. “Nemo debet esse 
      judex in propria causa sua” that is to say no man shall sit in judgment in 
      his own cause or in which he is interested.


      In Pritam Singh v Triptipal Singh & Co. & Another, (1991) 3 CLJ2 103
      the employee was dismissed after a domestic inquiry conducted by the 
      employer. The employee argued that the employer should not conduct the 
      inquiry because this would be contrary to the rules of natural justice that 
      one should not adjudicate a matter in which he has an interest. The High 
      Court dismissed the application. It held that the rule of natural justice 
      prohibiting a person from adjudicating a matter in which he has an 
      interest is only a general principle, which is not applicable in a domestic 
      inquiry. If otherwise, this would cause absurdity in the sense that the 
      employer cannot hold an inquiry to decide whether or not to dismiss the 
      employee. 


      In disciplining employees regards must be paid to the following principles 

      as held in Mukhtar Singh & Others v State of U.P, Agarwala J, AIR 
       1957 ALL297 quoted in Law of Wrongful Dismissal etc by Suranjan 
       Chakraverti, 6th edition (P13) :-


      That the authority must act in good faith, and not arbitrarily but 

      reasonably.

      (i)    That every person whose civil rights are affected must have 

             reasonable notice of the case he has to meet;

      (ii)   That he must have reasonable opportunity of being heard in his 

             defense;

      (iii)  The hearing must be by an impartial tribunal i.e. a person who is 

             neither directly or indirectly the party to the case.