SUSPENSION OF EMPLOYEE FOR INVESTIGATION PURPOSE
By Faudzil Harun
By Faudzil Harun
Suspension During The Investigation Process
When an employer
receives a complaint of misconduct or is made aware of such misconduct, he
should place the matter under investigation. At this stage it is left to the
employer whether to suspend the employee or not.
If he feels the employee’s presence will jeopardize the investigations, he should suspend him. He could also suspend the employee after the investigations are over and when he has decided to hold an inquiry into the misconduct.
The notice of suspension should include :
● During the period of suspension, the employee is not to engage in other
employment as he is still on the payroll of the employer.
● If he is provided with quarters, he is to remain at home during hours of
If he feels the employee’s presence will jeopardize the investigations, he should suspend him. He could also suspend the employee after the investigations are over and when he has decided to hold an inquiry into the misconduct.
The notice of suspension should include :
● During the period of suspension, the employee is not to engage in other
employment as he is still on the payroll of the employer.
● If he is provided with quarters, he is to remain at home during hours of
work.
● The employee should not stray to his work area or work area of others
● The employee should not stray to his work area or work area of others
during the suspension.
Section 14 (2) of The Employment Act, 1955
For the purposes of an inquiry under subsection (1), the employer may suspend the employee from work for a period not exceeding two weeks but shall pay him not less than half of his wages for such period:
Section 14 (2) of The Employment Act, 1955
For the purposes of an inquiry under subsection (1), the employer may suspend the employee from work for a period not exceeding two weeks but shall pay him not less than half of his wages for such period:
Provided that if the inquiry does not disclose any misconduct on the part of the employee the employer shall forthwith restore to the employee the full amount of wages so withheld.
Extension Of Suspension
In any case it is in the interest of the employer to conclude the domestic inquiry within a reasonable time. Suspension with pay is usually lawful, being within the employer’s discretion, since the employer is continuing to discharge his obligations by paying the employee.
Employers must attempt to complete
the investigations and the inquiry within 2 weeks or the extended period. There
have been cases of employers suspending employees indefinitely. This is not
satisfactory and will be to the detriment of the employer. It indicates a
weakness on the part of the employer as he is unsure what to do with the
suspended employee.
Suspension of Employee
Not Covered By The Employment Act, 1955
In MBF
Finance Sdn Bhd v Abdul Aziz bin Hashim, I/C Award 458/95, the court held that :
“It is well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his contract even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statue or rule under which it could be withheld.”
Suspension without pay will amount to a breach of contract. The Common Law declares that a term entitling the employer to suspend the employee for disciplinary reasons will not be implied in the contract of employment, in the absence of special evidence to support it.
In Medipro Mfg (M) Sdn Bhd v Siti Azmah Mat Taib, I/C Award 120/99, it was held :-
“An employer is not entitled to suspend an employee unless there is some provision express or implied, in the contract of employment permitting him to do so.”
In IT Smith & Wood’s Industrial Law, 5th edition (P327) quoted in the MBF case (supra) it was said that – “Suspension with pay will usually be lawful, and maybe the proper step to take for a brief period while a serious allegation against the employee is under investigation. In the absence of express or implied incorporation into the contract, there is no Common Law power to suspend without pay, for this would contravene the employers basic obligation to pay wages”
It is therefore clear that an employer can suspend a manager or executive who is not covered by the Employment Act, 1955 but he must pay him his full wages.
“It is well settled that an order of interim suspension can be passed against the employee while an inquiry is pending into his contract even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statue or rule under which it could be withheld.”
Suspension without pay will amount to a breach of contract. The Common Law declares that a term entitling the employer to suspend the employee for disciplinary reasons will not be implied in the contract of employment, in the absence of special evidence to support it.
In Medipro Mfg (M) Sdn Bhd v Siti Azmah Mat Taib, I/C Award 120/99, it was held :-
“An employer is not entitled to suspend an employee unless there is some provision express or implied, in the contract of employment permitting him to do so.”
In IT Smith & Wood’s Industrial Law, 5th edition (P327) quoted in the MBF case (supra) it was said that – “Suspension with pay will usually be lawful, and maybe the proper step to take for a brief period while a serious allegation against the employee is under investigation. In the absence of express or implied incorporation into the contract, there is no Common Law power to suspend without pay, for this would contravene the employers basic obligation to pay wages”
It is therefore clear that an employer can suspend a manager or executive who is not covered by the Employment Act, 1955 but he must pay him his full wages.