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.
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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”.
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.”
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
(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
(c) no material should be relied on against him without his having been given
an opportunity of explaining the
same.
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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
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
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
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
because this would be contrary to the rules of natural justice that one
should not adjudicate a matter in which he
has an interest.
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
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
That the authority must act in good faith, and not arbitrarily but
reasonably.
(i) That every person whose civil rights are affected must have
(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
(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
(iii) The hearing must be by an impartial tribunal i.e. a person who is
neither directly or indirectly the
party to the case.