NOTES OF A DOMESTIC INQUIRY
By Faudzil Harun
By Faudzil Harun
Note taking is an important aspect in a domestic inquiry. The finding of the panel on the charges will have to be based on the notes at the inquiry. If an employee is charged with theft on a particular date then evidence must be obtained in relation to the theft. If no evidence is gathered it will not be possible for the panel members to arrive at a decision on that charge. Notes taken down at the inquiry would come under the scrutiny of the Industrial Court if the matter is referred to the court. It is for these reasons that some seriousness should be placed on note taking. The chairman of the domestic inquiry should do the note taking.
The following guideline shall be observed in note taking :
1. The notes of inquiry must begin with a heading to indicate the nature of
the document.
Example
Notes of Inquiry into the Charges Against Mohd Nakal bin Mohd Jahat on the
12th day of July, 2012 at 1500hrs in the Sukahati Ventures
Meeting Room,
Level 1, No. 48, Jalan Kelam, 54300 Kuala Lumpur.
2. The respective functions of those
present for the inquiry must be recorded’
Example
Example
In the Presence of :
1. Mr. Mow Lee Sen (Chairman)
2. Mr. Ramesh Vellu (Panel Member)
3. Ms. Dengarito James (Panel Member)
4. Mr. Cakap bin Tekan (Prosecutor)
5. Mr. Mohd Nakal bin Mohd Jahat (Employee - charged)
6. Mr. Karpal Singh (Union Representative)
7. Ms. Bedah binti Joyah (Company Witness No. 1)
8. Mr. Agak Nampak bin Lihat (Company Witness No. 2)
9. Mr. Selamat bin Rehat (Employee Witness)
3.
Notes in the form of question and answer and the findings of the panel
members must be recorded to show that the
inquiry was proper and the
decision arrived at was fair.
4. The notes needs to show clearly who asked the question and who
4. The notes needs to show clearly who asked the question and who
answered them. (The procedure is for the
prosecuting officer to examine
the witness.). The use of short forms to indicate the
persons involved in
the proceeding is allowed.
Example :
CH - Chairman
PMR - Panel Member Ramesh
PMD - Panel Member Dengarito
PO - Prosecuting Officer
CL - Claimant
CW1 - Company Witness No. 1
CW2 - Company Witness No. 2
CLW - Claimant’s Witness
5. All Note taking must be complete. All relevant information must be
recorded e.g. The chairman decided for a 10
minutes recess to control the
tense situation, the claimant stood up and walk away
from the inquiry,
the Union Representative showed his fist to
the chairman etc.
6. The chairman has to record the findings of the panel members.
6. The chairman has to record the findings of the panel members.
Taking of Evidence and Calling of Witnesses
Though the domestic inquiry is a matter between the employer and the employee, care must be taken in the taking of evidence from the witnesses. It need not strictly follow the rules of evidence but some of the Industrial Court Awards have dictated that those taking evidence need some rudimentary knowledge on evidence taking as seen in the following cases :
Though the domestic inquiry is a matter between the employer and the employee, care must be taken in the taking of evidence from the witnesses. It need not strictly follow the rules of evidence but some of the Industrial Court Awards have dictated that those taking evidence need some rudimentary knowledge on evidence taking as seen in the following cases :
Evidence of
Accomplice
When an employee is charge with misconduct it may happen that the witness for the company could also be an accomplice. The evidence of an accomplice must be corroborated if the employer wishes to lend any weight to his evidence, If you are unable to obtain an independent witness, and the accomplice is the only one who could throw some light it would not be wise to go on with the charge.
“Although there is no rule of positive law the evidence of an accomplice cannot be acted upon, it is settled practice to require corrobation of the evidence of an accomplice and the rule of practice has now virtually assumed the force of a ‘rule of law’.”
In Sabah Forest Industries Sdn Bhd v Kamal Sidek & Others – I/C Award 653/98, the Court held – The evidence of a “particeps criminus” (partner in crime) who turns witness for the company has to be corroborated. Some reasonable doubt might be harboured as to his ability to be completely honest, as he had been given a reference by the company and reinstated to the company.
Withholding of Evidence / Adverse Inference if Evidence Available is not Produced
It is important that all witness who could shed some light into the misconduct alleged are available to give evidence. If a material witness is not available on the date when the domestic inquiry is being conducted, the inquiry should proceed but the chairman of the inquiry should also set another date to obtain the evidence of the witness.
Absence of company witness at the domestic inquiry is a procedural irregularity and the employer who does that faces the prospect of his domestic inquiry being disregarded (Amalgamated Steel Mills Bhd v MIEU, I/C Award 167/92).
The court will also invoke Section 114(g) of the Evidence Act which states that in the absence of evidence available but not produced, such evidence is presumed to be unfavourable to the party that withholds it (Selangor Omnibus Co Bhd v TWU, I/C Award 9/92).
The court would also draw adverse inference if officers of the company were available but failed to be called to give evidence (Schmidt Scientific Sdn Bhd v Valerie Wong Ngan Kuan, I/C Award 372/95.1995 2ILR489).
When an employee is charge with misconduct it may happen that the witness for the company could also be an accomplice. The evidence of an accomplice must be corroborated if the employer wishes to lend any weight to his evidence, If you are unable to obtain an independent witness, and the accomplice is the only one who could throw some light it would not be wise to go on with the charge.
“Although there is no rule of positive law the evidence of an accomplice cannot be acted upon, it is settled practice to require corrobation of the evidence of an accomplice and the rule of practice has now virtually assumed the force of a ‘rule of law’.”
In Sabah Forest Industries Sdn Bhd v Kamal Sidek & Others – I/C Award 653/98, the Court held – The evidence of a “particeps criminus” (partner in crime) who turns witness for the company has to be corroborated. Some reasonable doubt might be harboured as to his ability to be completely honest, as he had been given a reference by the company and reinstated to the company.
Withholding of Evidence / Adverse Inference if Evidence Available is not Produced
It is important that all witness who could shed some light into the misconduct alleged are available to give evidence. If a material witness is not available on the date when the domestic inquiry is being conducted, the inquiry should proceed but the chairman of the inquiry should also set another date to obtain the evidence of the witness.
Absence of company witness at the domestic inquiry is a procedural irregularity and the employer who does that faces the prospect of his domestic inquiry being disregarded (Amalgamated Steel Mills Bhd v MIEU, I/C Award 167/92).
The court will also invoke Section 114(g) of the Evidence Act which states that in the absence of evidence available but not produced, such evidence is presumed to be unfavourable to the party that withholds it (Selangor Omnibus Co Bhd v TWU, I/C Award 9/92).
The court would also draw adverse inference if officers of the company were available but failed to be called to give evidence (Schmidt Scientific Sdn Bhd v Valerie Wong Ngan Kuan, I/C Award 372/95.1995 2ILR489).
Language Understood
by Employee
Consideration must be given to the language spoken by the employee. It will be against the principles of natural justice if the inquiry is conducted in a language that is not understood by the employee and there is no provision of an interpreter. The employee is to present his side of the case and unless he is aware of what is being said, he will not be able to defend himself. The chairman of the inquiry has to ensure that the employee understands the proceedings. If he is unable to converse in Malay or English it would be advisable to provide a translator who could translate the questions and answers in a language understood by the employee. The translator at the domestic inquiry need not be a qualified one and could be drawn from the resources in the place of employment.
Consideration must be given to the language spoken by the employee. It will be against the principles of natural justice if the inquiry is conducted in a language that is not understood by the employee and there is no provision of an interpreter. The employee is to present his side of the case and unless he is aware of what is being said, he will not be able to defend himself. The chairman of the inquiry has to ensure that the employee understands the proceedings. If he is unable to converse in Malay or English it would be advisable to provide a translator who could translate the questions and answers in a language understood by the employee. The translator at the domestic inquiry need not be a qualified one and could be drawn from the resources in the place of employment.
Hearsay Evidence is no Evidence
It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court which then has the opportunity of seeing the witness and observing his demeanour and can thus from a better opinion as to the reliability of the evidence. If a witness relates in court what he heard from another witness, it is hearsay evidence and may not be admissible. Hearsay evidence is excluded on the ground that it is in the interest of justice to get the person, whose statement is relied upon, into court for his examination in order that inaccuracy and untrustworthiness can best be brought to light and exposed if they exist, by the test of cross examination.
The Supreme Court in Ram Singh v Bright Steel Sdn Bhd (1988) 2CLJ8 held that hearsay evidence is no evidence and cannot be relied upon even in a court where procedure is informal. In this case the appeal was on a decision of the “Labour Court.”
It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court which then has the opportunity of seeing the witness and observing his demeanour and can thus from a better opinion as to the reliability of the evidence. If a witness relates in court what he heard from another witness, it is hearsay evidence and may not be admissible. Hearsay evidence is excluded on the ground that it is in the interest of justice to get the person, whose statement is relied upon, into court for his examination in order that inaccuracy and untrustworthiness can best be brought to light and exposed if they exist, by the test of cross examination.
The Supreme Court in Ram Singh v Bright Steel Sdn Bhd (1988) 2CLJ8 held that hearsay evidence is no evidence and cannot be relied upon even in a court where procedure is informal. In this case the appeal was on a decision of the “Labour Court.”
Calling of Company Witness
Workman should be allowed to see and hear each witness to interrogate them and to question them one by one. The employer should produce all available witnesses however senior they may be and permit the workman to put questions to them.
Workman should be allowed to see and hear each witness to interrogate them and to question them one by one. The employer should produce all available witnesses however senior they may be and permit the workman to put questions to them.
Witnesses at the Industrial Court
Any party wishing to prove its case must produce witnesses who could give evidence in respect of the matters in dispute. If the witness sought is an employee or customer of the company, the workman could apply to the court for a subpoena to get the attendance of the witnesses to the court. It is not for the company to provide witnesses that the employee considers would be necessary for establishing his case
Any party wishing to prove its case must produce witnesses who could give evidence in respect of the matters in dispute. If the witness sought is an employee or customer of the company, the workman could apply to the court for a subpoena to get the attendance of the witnesses to the court. It is not for the company to provide witnesses that the employee considers would be necessary for establishing his case