TOPIC: Domestic Inquiry
Domestic Inquiry 23 Feb 2012 07:53 #1
sekadar perkongsian maklumat.
PART I WHAT IS DOMESTIC INQUIRY?
Employers are often faced with the daunting task of handling disciplinary problems in the workplace. It is an easy option for management to terminate an employee the moment an offence considered graved is committed, however there are negative repercussion involve if it is not done in a proper manner. Dismissal has to be justified and it is the responsibility of the employer to prove the existence of such misconduct in a manner deemed fair.
A method often used to handle disciplinary problem at the workplace is Domestic Inquiry (DI).
DI is conducted by the Management to investigate and to establish facts to a disciplinary act committed by an employee. In the process, recommended punishment is administered.
This article will provide an insight on the mechanics of a proper DI proceeding. Part One of this article will provide a general view of DI and its implication, while Part Two, will provide a step-by-step guide when conducting a DI.
IS IT NECESSARY TO HOLD DI?
It is mandatory for companies to conduct DI prior to the employee being punished for a misconduct. The following two (2) situations would justify the need to hold a DI:
Firstly, DI has to be conducted in compliance with Section 14(1) of Employment Act 1955 (Dreamland Corp. (M) Sdn Bhd V Choong Chin Sooi & Anor). However should there be a willful breach by the employee of a condition of the contract of service, such as refusing to perform duties, which are agreed under the contract of service, a due inquiry need not be conducted, Section 13 (2). To strengthen the case, and to proof the breach it is still advisable to conduct a DI.
Secondly, DI has always been looked at as a fair and proper way to handle a disciplinary problem. It allows the employees the opportunity to defend themselves in the presence of a neutral panel, and the management to investigate the case further without making hasty decisions. This second situation arises on the principle of Natural Justice.
It has to be noted that by conducting a DI and subsequently finding the employee guilty of such charges, does not necessary lead to a dismissal. The punishment administered has to be congruent to the gravity of the misconduct. In the case of Theen Seng Paper Manufacturing Sdn Bhd vs 6 employees represented by Paper and Paper Products Manufacturing Employees Union, six employees were terminated for being absent from work for a day. It was held that the punishment administered by the management of Theen Seng Paper was too harsh and does not justify a termination of service.
GUIDELINES FOR CONDUCTING DI
The Employment Act does not specify a set rule in conducting a DI, however some guidelines as provided in the Malaysian Employment Handbook (CCH Asia Limited 1995) are worth noting, and this includes:
•DI should be conducted within a short period after suspension of duty
•Charges brought against the employee should be precise and in writing
•The employee concern should be given ample time to prepare for his case and to consult
•During the DI, the employee should be allowed to be accompanied/assisted by his union representative (if unionized).
•DI should be conducted preferably by parties within the company who are not directly connected with the investigation and had no prior knowledge of the allegation.
•The recording of notes should be administered in a "question and answer" format, and both parties are required to sign the notes of proceeding to maintain fairness in reporting.
•Witnesses brought in during the DI can give their evidence in the presence of the accused employee.
•The panel of inquiry's decision should be based upon the recorded notes and act in an unbiased manner when arriving at a decision.
The period of suspension prior to DI is permitted for a maximum period of 2 weeks with half pay. This is only applicable for those employees falling within the scope of the EA. Should the accused employee be found not guilty of the charges placed against him, the employer shall restore to the employee the full amount of wages with-held and to reinstate the employee to the former position held with the same benefits and remuneration.
COMPOSITION OF PANEL OF DI
A typical DI would have a Chairman (C), Panel Members (PM), Secretary (S), Prosecuting Officer (PO) and an Investigation Officer (IO).
I. PANEL MEMBERS (PM) AND CHAIRMAN
Inquiry officers or panel members are nominated by the Head of Human Resources after consultation with the division heads. The ideal number of panel members would be between 3-5 including the Chairman. The rank of the Chairman has to be equal if not more superior to the rest of the members.
The PM should conduct the case with an open mind and not be influence by the character of the accused employee. PM should not be briefed of the case prior to the DI, and they should not attempt to find out about the case through the grapevine as these may unfairly influence the outcome of the DI.
II. PROSECUTING OFFICER (PO)
The PO's role is merely to prosecute the case and leave questions pertaining to the employee's guilt to the panel of inquiry. The PO should not be part of the panel neither has he/she the right to make decision regarding the accused.
III. INVESTIGATING OFFICER (IO)
Prior to the DI proper, the Investigating Officer (IO) role is to conduct a preliminary investigation to determine if a prima facie case exist. During the DI the investigation officer is required to read and present the case in a chronological manner commencing from the moment a misconduct is lodged, the process involved during the investigation period, and finally to the submission of statements made by witnesses or evidence related to the case in question. All statements made are confined to facts and no personal opinion is encouraged.
1. How to Conduct A Domestic Inquiry, Linda Ang, 1996.
2. Procedure of Domestic Inquiry, Jawatankuasa Kaunseling Insitu, Jabatan Buruh Selangor/W.P.
3. Malaysian Employers' Handbook, 1995 CCH Asia Limited.
Glossary: Ex Parte: Inquiry held, even without the attendance of the accused employee, often willfully or without reasonable excuse. Prima facie: on the surface
Section 13(2) states that "either party to a contract of service may terminate such contract of service without notice in the event of any willful breach by the other party of a condition of the Contract of Service"
Section 14(1) states that "an employer may, on the grounds of misconduct, inconsistent with the fulfillment of the express or implied conditions of his services, after due inquiry, dismiss without notice the employee".
Natural Justice principals states that: 1. Both sides shall be heard, and 2. No man shall be a judge in his cause.
PART II STEPS IN A DOMESTIC INQUIRY
STEP 1: Preliminary Investigation Upon Receiving Report of Alleged Misconduct
In order to proceed with a suspension and DI, the Management (upon receiving a report of an alleged misconduct) has to conduct a preliminary investigation to find out if a prima facie case exists to justify a disciplinary proceeding.
Should there be a case, a Show Cause letter or a Charge Sheet will be issued to the accused employee stating the charges leveled against the employee and the time period to respond to such charges. If the answer given is not satisfactory then the management can proceed with issuing a Notice of Inquiry.
STEP 2: Notice Of Inquiry
The notice of inquiry should contain the charges (charges has to relate to the company rules and regulations) and be as specific as possible. If more than one charge are leveled against the accused, the subsequent charges should be in separate paragraphs.
It should also contain the time, date and place of the hearing. If suspension is to be administered prior to the DI to facilitate further investigation, it should not be more than 2 weeks (EA Section 14-2) with half pay.
The Notice of Inquiry should also contain an avenue for the accused to bring a witness to the inquiry or to be represented by a Union member.
STEP 3: Hearing
A proper DI should commence with the following statement read out by the investigating officer:
i. Hearing ii. Date and time of inquiry iii. Venue of the inquiry iv. Name and designation of the accused v. Nature of Misconduct vi. Designation of Panel Members
If the accused employee is absent without any explanation, even after a Notice of Inquiry has been served, the board can proceed with the hearing ex-parte.
If the accused is present, the charge(s) will be read out and his plea will be recorded. The plea is either guilty or not guilty. If the accused pleads guilty to a charge(s) then he/she will be given the chance to explain the circumstances, which led to the misconduct. The accused will also be allowed to express a plea for a lesser punishment.
For charges, which the employee does not admit, the burden of proof lies on the company. They now need to adduce evidence to proof the charges. Hence this may include calling in the company's witnesses. The witness will, be subjected to cross-examination by the accused employee, as well as from the panel members present.
Similarly the recording of evidence and cross-examination of the accused by company representative and panel members will be conducted during the proceeding of the inquiry.
Step 4: Findings and Decision of the Board of Inquiry
The findings of the Panel Members will be based on the recordings taken during the duration of the proceeding. It should be clear, precise and unambiguous. The main function of the board at this juncture will be to determine if the alleged misconduct has been committed. If the accused is proven guilty then a suitable punishment will be decided. The Board of Enquiry may sometime not given the authority to decide on the form of punishment. If this arises, then the form of punishment would be left to the Head of Human Resources to decide.
TYPE OF PUNISHMENT
A DI does not necessary leads to a termination of service. As mentioned earlier the punishment administered has to be congruent to the misconduct. The Employer may seek reference to the EA when deciding a punishment. Section 14 of the EA 1955 states that an employer can downgrade the employee or imposed any lesser punishment deemed just and fit against the offence committed. The employer can also suspend the employee from work without pay, but shall not exceed 2 weeks.
Other forms of punishment which has been practiced by companies includes demotion, deferment or stoppage of annual increment, not eligible for bonus, stern verbal or written warning (written warning are only valid for a period of not more than 12 months).
Appeal or a plea for mitigation sometimes arises when the accused employee find the punishment imposed unfair. If the employee is not satisfied with the outcome of the DI, he/she can appeal to the Management to have the decision of the DI reviewed, revised or reduced to a lesser punishment.
Usually the decision made by the Management is final, however, if the employee is still not satisfied with the decision made then he has 60 days to file a report to the Director General of the IR under Section 20 (1). Or the employee concern can lodge a complain to the Director General under Section 69 (3) of the Employment Act 1955 within 30 days from date on which the decision of the DI was communicated.
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