Faudzil @ Ajak

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

5 April 2013

HR MANAGEMENT - What is a Domestic Inquiry?






WHAT IS A DOMESTIC INQUIRY?

By Faudzil Harun


A domestic inquiry is :

● a process of company internal investigation 
   activity on the conduct of an employee at work.

● it has to do with allegations that the employee 
   has engaged in actions that are outside the scope 
   of company ethics and procedures, and represents 
   an attempt on the part of the business to 
   ascertain if any type of misconduct has in fact 
   taken place. Pending the outcome of the domestic inquiry, the employee may be censured in some manner, up to and including job termination.

● is triggered by suspicions of wrongdoing on the part of the employee.

the opportunity for an alleged employee to make explanation of the charges
   made to him, challenge and defend himself.






The Need for Domestic Inquiry

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 :


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.                   

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”.
                 

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.”


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 
      examined by the opposite party;
(c)  no material should be relied on against him without his having been given 
      an opportunity of explaining the same.





The Principles of Natural Justice

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 
     defense 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 i.e. 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.