By Faudzil Harun - Trans Management Consultants (TMC)
Taking of Statements During the Investigation
1. The investigations to ascertain if an employee should be charged with
committing offences should be done fairly.
2. The entrenched guiding principle in industrial adjudication is that the
burden of proof is on the employer.
3. If there is suspicion that an employee had committed an offence that is no
excuse to go overboard and frame charges knowing full well there are
neither witnesses nor evidence to incriminate the employee.
4. The employer should appoint an officer to investigate into the case.
5. The investigating officer should interview and take statements from
persons connected with the misconduct. These persons could be the
accused and the possible witnesses.
6. Individual statements need to be taken from witnesses and the accused
person/s.
7. Joint statements i.e. where the investigating officer interviews two or more
persons at the same time and reduces their evidence in one single
statement should not be done. This is because no two persons could give
exactly the same statement even if both of them witnessed the same
incident.
Investigation to be Through and Unbiased
1. The investigating officer should be trained in the art of investigations into
misconduct or incident.
2. The investigating officer should have the proficiency to probe into the
matter unbiased and gather facts and information on all aspects of the
complaint or accusation.
3. The investigating officer should ensure he has sufficient information and
that he has not left out important details pertaining to the misconduct.
4. The investigating officer also has the duty to ensure that what he has
obtained are facts and not mere rumours and hearsay.
5. The investigations should be fair and impartial and conducted in a proper
manner to establish whether there is a case for the employee to answer.
6. If threats and inducements are made to the workman to extract an
admission, the court will disregard such evidence, as they are
inadmissible.
7. The investigating officer then reports his findings to the employer who
would then decide whether to issue a show cause letter or to proceed with
an inquiry. If the investigations are not thorough it can spell trouble for
the employer as the gaps can prove fatal.
In one case, a clerk was accused of making false overtime claims.
Investigations did not reveal that the clerk has been permitted to take
unfinished work home to be done in the privacy of her home. This fact only
came to light at the Industrial Court, by which time it was too late as the
domestic inquiry found the clerk guilty and as consequence she had her
services terminated.
Inaction and Delay in Investigating a Case
Investigations of complaints of misconduct should be done with least delay.
If there is a delay the employer could be accused of condoning the offence, that is, he has forgiven the employee for the misconduct. Often condonation is brought about unwillingly and because of ignorance. It could arise when the employer of his authorized person learns of the incidence of misconduct and does not know what to do or is given wrong advice or takes too long time to make a decision to act.
In Perbadanan Nasional Bhd v Rozanah Romas Manuel, I/C Award 148/87, the Industrial Court held that the delay of 57 days taken by the company to investigate an assault was unreasonable.
In Ladang St. Andrew Batang Berjuntai v Suppiah a/l Kathiresan, I/C Award 183/86, the claimant, a lorry driver was alleged to have absent on 19th, 20th and 21st July, 1985. He was allowed to work from 23rd to 29th July, 1985. The Industrial Court held that by allowing claimant to work on 23rd July, 1985 and giving him a chance, his absence was condoned.
In Koperasi Serbaguna Cuepacs Tanggongan Berhad v Vimala Sivaparagasam, I/C Award 367/2000, The employer has failed to take prompt action on a habitual latecomer, who was alleged to have been late on 61 occasions. His subsequent dismissal on a blanket accusation or persistent late coming was held to be unjust.
Common Words Used by Superior that Lead to Condonation
1. It’s ok, do not repeat it the next time.
2. People make mistake, learn from your mistake, and continue your work.
3. Get on with your work, I will try to help you this time.
4. Continue your work while we wait for the decision from the management.
5. Continue your work until a decision is made.
6. If I help you this time, make sure you never repeat the same next time.
7. Get on with your work, I will try to appeal for you to continue in
employment.
and so on ……….
It is obviously that an
investigation shall be carried out by the employer against the employee before
charging the employee with a case.
Taking of Statements During the Investigation
1. The investigations to ascertain if an employee should be charged with
committing offences should be done fairly.
2. The entrenched guiding principle in industrial adjudication is that the
burden of proof is on the employer.
3. If there is suspicion that an employee had committed an offence that is no
excuse to go overboard and frame charges knowing full well there are
neither witnesses nor evidence to incriminate the employee.
4. The employer should appoint an officer to investigate into the case.
5. The investigating officer should interview and take statements from
persons connected with the misconduct. These persons could be the
accused and the possible witnesses.
6. Individual statements need to be taken from witnesses and the accused
person/s.
7. Joint statements i.e. where the investigating officer interviews two or more
persons at the same time and reduces their evidence in one single
statement should not be done. This is because no two persons could give
exactly the same statement even if both of them witnessed the same
incident.
Investigation to be Through and Unbiased
1. The investigating officer should be trained in the art of investigations into
misconduct or incident.
2. The investigating officer should have the proficiency to probe into the
matter unbiased and gather facts and information on all aspects of the
complaint or accusation.
3. The investigating officer should ensure he has sufficient information and
that he has not left out important details pertaining to the misconduct.
4. The investigating officer also has the duty to ensure that what he has
obtained are facts and not mere rumours and hearsay.
5. The investigations should be fair and impartial and conducted in a proper
manner to establish whether there is a case for the employee to answer.
6. If threats and inducements are made to the workman to extract an
admission, the court will disregard such evidence, as they are
inadmissible.
7. The investigating officer then reports his findings to the employer who
would then decide whether to issue a show cause letter or to proceed with
an inquiry. If the investigations are not thorough it can spell trouble for
the employer as the gaps can prove fatal.
In one case, a clerk was accused of making false overtime claims.
Investigations did not reveal that the clerk has been permitted to take
unfinished work home to be done in the privacy of her home. This fact only
came to light at the Industrial Court, by which time it was too late as the
domestic inquiry found the clerk guilty and as consequence she had her
services terminated.
Inaction and Delay in Investigating a Case
Investigations of complaints of misconduct should be done with least delay.
If there is a delay the employer could be accused of condoning the offence, that is, he has forgiven the employee for the misconduct. Often condonation is brought about unwillingly and because of ignorance. It could arise when the employer of his authorized person learns of the incidence of misconduct and does not know what to do or is given wrong advice or takes too long time to make a decision to act.
In Perbadanan Nasional Bhd v Rozanah Romas Manuel, I/C Award 148/87, the Industrial Court held that the delay of 57 days taken by the company to investigate an assault was unreasonable.
In Ladang St. Andrew Batang Berjuntai v Suppiah a/l Kathiresan, I/C Award 183/86, the claimant, a lorry driver was alleged to have absent on 19th, 20th and 21st July, 1985. He was allowed to work from 23rd to 29th July, 1985. The Industrial Court held that by allowing claimant to work on 23rd July, 1985 and giving him a chance, his absence was condoned.
In Koperasi Serbaguna Cuepacs Tanggongan Berhad v Vimala Sivaparagasam, I/C Award 367/2000, The employer has failed to take prompt action on a habitual latecomer, who was alleged to have been late on 61 occasions. His subsequent dismissal on a blanket accusation or persistent late coming was held to be unjust.
Common Words Used by Superior that Lead to Condonation
1. It’s ok, do not repeat it the next time.
2. People make mistake, learn from your mistake, and continue your work.
3. Get on with your work, I will try to help you this time.
4. Continue your work while we wait for the decision from the management.
5. Continue your work until a decision is made.
6. If I help you this time, make sure you never repeat the same next time.
7. Get on with your work, I will try to appeal for you to continue in
employment.
and so on ……….