9. Under Section 14(1) of the Employment Act, 1955, it is stated that an
employer may, AFTER DUE INQUIRY, dismiss the employee or take other disciplinary action including downgrading and suspension of the employee on grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of service.
10. The effect of the incorporation of the term “DUE INQUIRY” into the provisions of Section 14(1) of the Employment Act 1955 was considered in detail in the recent Federal Court decision of Said Dharmalingam v. Malayan Breweries (Malaya) Sdn Bhd (1997) 1 CLJ 646 where the Court stated as follows:
“In R. v. BBC, ex parte Lavelle (1982) 1 RId? 404, Woolf J indicated, albeit obiter, that when there is a procedure for dismissal in an employment not covered by statute at all, employers must comply with that procedure for the dismissal to be valid. If the contractual procedure was infringed an injunction should issue to prevent the dismissal. This view was partly based on the notion that employment protection legislation had substantially changed the position at common law, so that ‘the ordinary contract between master and servant now has many of the attributes of an office.’
In the present case, there is a statutory requirement, to wit, s. 14(1) of the
Act, providing for the elementary safeguard of the right to “due inquiry” by
the employer. It follows, that at least, prima facie, a dismissal in breach of
s. 14(1) would be void.
Having said that, we must add, that when, as here, a claimant is an employee within the meaning of the Act, he has by s. 14(2) thereof a statutory right to “due enquiry” by his employer, and so, the approach of the Industrial Court or for that matter the High Court, in considering the question whether the claimant had been dismissed without just cause or excuse, would be, to examine the decision not just for substance but for process as well.”
11. The decision of the Federal Court in Said Dharmalingam clearly states in
respect of employees governed by the Employment Act that unless there is due enquiry prior to dismissal for misconduct, the dismissal can be struck down by the Industrial Court even if the employer can show sufficient grounds to dismiss. Hence, “procedural fairness” is crucial in successfully upholding the dismissal.
12. It should perhaps be noted that an earlier Federal Court decision in Milan Auto Sdn Bhd v Wong Sen Yen (1996) 1 AMR 49 held that the requirement of “due inquiry” before dismissal in Section 14(1) of the Employment Act was not mandatory and, even if there was a defective inquiry, it was “curable” in the sense the Industrial Court could still enquire into the decision to dismiss and uphold the same if proper grounds were made out.
13. It is respectfully suggested that the decision in the Milan Auto case can be explained on the basis that there, the Industrial Court wrongly struck down a dismissal without inquiring into the merits of the dismissal which it was required to do under Section 20 of the Industrial Relations Act, 1967. However, given that the most recent pronouncement on the question of due inquiry, is as set out in the said Dharmalingam’s case, it is respectfully
suggested that all prudent employers should, when dealing with complaints of misconduct of employees governed by the Employment Act, ensure that a
proper inquiry is conducted or run the risk of dismissal being struck down.
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