21. Normally, the source of the complaint comes from the employee’s immediate superior or a fellow employee.
22. It is essential to investigate the complaint as soon as possible. This has the double advantage of obtaining the relevant evidence before it becomes difficult or impossible to trace and also to avoid any allegation by the employee subsequently that the employers have “condoned” the alleged misconduct.
23. It is always useful to interview all parties concerned in the complaint and have their statements recorded. In charges involving financial irregularities and misconduct, it is best that an internal audit be conducted and full and comprehensive report be compiled. A difficulty can sometimes arise, if the, complaint is from an outside source i.e. not within the employment, organisation and such person is reluctant to give any written statement to substantiate his complaint. There could be difficulties if the employee, when confronted, makes a total denial of the allegation.
24. To obviate the difficulty, it is suggested that the outsider complainant (i.e. the third party), should be persuaded to reduce his complaint in writing so that disciplinary action can be instituted against the employee concerned. At the same time, the investigation officer should ascertain if other supporting evidence from within the Company can be obtained to corroborate or support the complaint so that the third party’s complaint does not stand by itself.
25. It is also important that the investigating officer is unconnected with the allegations and not a person who is likely to be selected to sit on the Inquiry Panel. If the investigation involves some special expertise and skill or understanding of a particular area of the operations, a suitably qualified person well versed in the area should be approached to assist in the investigation.
SHOW CAUSE LETTER
26. If the investigation establishes a prima facie case justifying the complaint which calls for an explanation from the employee, the employer should then proceed to issue a show cause letter.
27. The letter should be drafted in clear and unambiguous language setting out all the allegations to which the employee is requested to “show cause”. It should normally be signed by the Personnel Manager or Head of the Department. Where the charges are of a technical nature, i.e. misappropriation or breach of trust, it is best to, draft the same in the format of a charge in a criminal case. This will immediately highlight the elements of the offence that need to be proved and would also provide for precision in the drafting. A vague or ambiguously worded charge in a show cause letter is often indicative that the employers are unsure of the circumstances giving rise to the charge or even worse, create an impression that the charges are not bona fide.
28. Where possible, the charge should specifically refer to which rules or regulations, that have been breached. If no specific rules have been breached, it is best to state the charges constitute either a breach of both the express and/or implied terms of the contract of employment.
29. The show cause letter should be confidential and preferably delivered to the employee personally. If this is not possible, the letter should be sent to the employee’s address.
SUSPENSION DURING PERIOD TO SHOW CAUSE
30. Care must be taken that the period of suspension and the amount of pay the employee receives during the period of suspension are in accordance with the provisions of the Employment Act or relevant Collective Agreement, where applicable.
31. If extension of the period of suspension is required to complete investigations, especially upon receipt of the employee’s reply to the show cause letter, the employee must be notified accordingly. It is advisable to ensure that the employee receives his full salary for any extended period of suspension.
32. It is normal that suspension is invoked where the presence of the employee is likely to jeopardise the safety and discipline of the Company and hence, should only be resorted to where charges of major misconduct are made or there are several charges.
33. Furthermore, the letter of suspension should not give instructions that the employee should stay at his place of residence during working hours as such an order amounts to house arrest and is unlawful. Malayan Banking Berhad v. Association of Bank Officers Peninsula Malaysia (Award 347 of 1986)
34. Depending on the reply received from the employee, the Company may proceed to institute a domestic inquiry. This may be necessary even if an employee, in his reply to the show cause letter, gives a vague response and appears to admit to only some of the charges or just part of the charge.
THE DOMESTIC INQUIRY PROPER
35. The first step is to send a notice of the domestic inquiry to the employee concerned. The notice should give particulars of the date, time and place of the inquiry and should stipulate that the employee would be entitled to cross-examine the employer’s witnesses and may, himself, produce witnesses or documents to rebut the charges.
36. Where there are several charges of a detailed nature, care must be taken to ensure that the period of time between the notice of domestic inquiry and the actual inquiry is of a reasonable period to prepare his defence.
37. In the meanwhile, the employers should proceed to select the panel of
members for the inquiry. The basic criteria for the selection should be:
(a) Officers who are not involved directly with the investigation and circumstances of the case.
(b) Officers should normally be of a rank or status above the employee facing the disciplinary charges.
(c) The Chairman should be adequately well versed with the, general, legislation involving employment and the Industrial Court awards.
38. Of particular importance is the rule that the Panel should not be seen to be biased or even appear biased. In a number of cases the Industrial Court has held that the element of bias vitiates the fairness of the dismissal.
39. In Oriental Bank Bhd v Zulkiflee b. Hassan, Kaiang (1986) 2 ILR 1332 the Claimant was dismissed for breach of the express terms and limit of authority by which he was bound and/or breach of general duty of care obligatory upon him.
40. The Claimant contended that the inquiry held was not carried out properly and his dismissal was unlawful, mala fide and amounted to an unfair labour practice.
41. In this case, the Chairman of the Inquiry was fully informed of the results of the investigation conducted by the investigator. Subsequently, he had a meeting with the Claimant before the Inquiry where the Claimant gave his own story. Another member of the inquiry was also present during the meeting. The Chairman and the member knew all the facts of the allegation prior to the inquiry.
42. It was held that there was an element of bias because some of the members of the inquiry had known the facts of the allegations. Although the claimant was guilty of gross negligence and was rightly dismissed, since there was bias in the inquiry the Claimant was entitled to backwages.
43. Similarly, care must be taken to ensure that the Panel does not appear overly keen to question the employee. This role should be left to the employer’s representative presenting the case. While the Panel may always clarify points arising during the course of the proceedings they should not turn the inquiry into an inquisition.
NOTES OF INQUIRY
44. All statements given in the inquiry should be carefully recorded either by the Panel Member or a member of staff for that purpose. Further, the notes should be typed up and made available for the employee to counter-sign to avoid any challenge subsequently by the employee. See OYL Condoir Industries Sdn Bhd v. Kulijan a/i Muthusamy & 2 ors (1992) 2 ILR 33 where the Court held that the domestic inquiry was conducted unfairly and unjustly as the Claimants were not allowed to call witnesses, no notes of proceedings were recorded nor made.
45. The general procedure at the inquiry would normally be as follows:
The Charge must be read to the employee and explained to him at the commencement of the inquiry. If he admits the charge, he should be given the opportunity to express the circumstances that led him to commit the offence and mitigates his case. The Chairman then will ask the officer presenting the case to briefly state the facts of the case including how the offence was committed to enable the Panel to recommend the appropriate punishment or continue with the proceedings.
If the employee concerned is absent without an explanation offered, the case
may still be heard in his absence and the outcome of it must be communicated to him.
Any witnesses, called by either party to give statements, is to be subject to cross-examination by the other party. In other words, there will be an examination in chief by one party, cross examination by the other party and re-examination by the former party of witnesses. Statements made by these witnesses must be recorded and signed by them. They must not be in the room where the inquiry is being held until called in by the Chairman.
46. It must also be noted that while an employee may be accompanied by a Union representative at the inquiry, he is not entitled to insist on legal representation.
Petroleum Nasional Bhd v. Mohd Radzuan B. Rarnli 1993 1 ILP. 100 and Sime Darby Plantation Sdn Bhd v. Wong Chu Meng 1983 2 ILR 210.
PROCEDURE SUBSEQUENT TO INQUIRY
47. After the inquiry, the Chairman should discuss the case with the Panel
Members and decide upon the merits of the case.
48. Findings should be contained in a report which should be based on the material and evidence produced at the inquiry giving reasons in brief for conclusions on the charges.
49. In Standard Chartered Bank v. Cliff a/l James (1991) 2 ILR 1168, the Court held that as no finding of the inquiry was recorded at the end of the notes of inquiry, this effectively invalidated the inquiry and the Court was entitled to disregard the notes of inquiry.
50. The Report, once finalised, is then sent to the appropriate executive or officer in management for taking the requisite action. Unless it is expressly empowered to do so, the Panel should refrain from determining what the punishment should be meted out although they may merely recommend disciplinary actions. The reason is that the question of meting out the appropriate punishment does not involve the deliberation of the finding of the charges but other factors such as the employee’s previous records, warnings etc. which would not normally be available to the Panel.
51. Once management is in a position to fully consider all the relevant factors, then the appropriate disciplinary action can be taken. If dismissal is decided, the employee should be informed as soon as possible and also on what grounds he is being dismissed. If there is a right of appeal within the disciplinary procedures against the decision, the employee should be directed to that fact and informed of the period and to whom he may exercise his right of appeal. In this regard, the decision of Said Dharmalingam is again of importance. In that case, the Court held that it is incumbent on an employer to provide the employee an opportunity to make a plea in mitigation.
52. As was stated by the Court:
“Due inquiry for the purposes of Section 14 of the Act includes the right to make representations against the punishment proposed as a result of adverse findings by a domestic body” The Court, however, held that a plea of mitigation is not necessary where the employment contract states that dismissal mandatory upon a particular finding or where the misconduct is so grave that no useful purpose would be served by a plea in mitigation.
53. Once all avenues for internal appeals are exhausted and assuming that the employees appeal is rejected, the employee should be so informed. It is normal to pay the employee whatever monies due subject to income tax clearance and request that all company property be returned.
54. If these procedures and guidelines are adhered to, an employer should be well on his way to being able to defend successfully an unfair dismissal complaint in the Industrial Court.
0 comments:
Post a Comment