24 April 2013

HR MANAGEMENT - Employee Case Investigation

By Faudzil Harun - Trans Management Consultants (TMC)

















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 ……….