Common Pitfall of Domestic Inquiry (DI)

Common Pitfall of Domestic Inquiry (DI)

Why is it important?

Syarikat Telekom Malaysia Berhad V. Saidon Bin Puteh [1996] 1 ILR 619

A due inquiry properly conducted and well-documented serves to ensure that a disciplinary authority has acted only after giving fair consideration to the matter. It also provides a reliable record for the employer to turn to when, due to the effluxion of time witnesses have become unavailable or memories have faded, the employer is faced with difficulties in having to prove his case before an industrial tribunal. Confronted with such forensic difficulties, an employer might well have to make extensive references to the records of the domestic inquiry.

Issues which causes DI to be defective or  void

1.Refusal to postpone the DI (Mohd Zaihan Mohd Zain V. Island & Peninsular Berhad [2008] 4 ILR 155)

The company rejection of the claimant’s request for postponement is unreasonable. The company emphasized on what was convenient for them and overlooked the claimant’s position and interest. Hence the DI held was improper as it is in direct contradiction of the principle of natural justice as the claimant was not given a chance to state his case. 

 2. Defective Charges (Anbuselvan a/l Sinnasamy v Indah Water Konsortium Sdn Bhd

            [2018] ILJU 127)

It is imperative that one who is accused must know precisely what he is being accused of, in order for him to answer and/or defend himself against those accusations, as otherwise he would be deprived of his livelihood and/or liberty. 

3. Placing the burden of proof on the employee (Oh Teik Hai v Open University Malaysia

(OUM) [2015] 2 ILJ 123)

In a wrongful dismissal case, the employer must produce convincing and cogent evidence that the workman committed the misconduct that he was alleged against . This burden of proof lies on the employer. Thus it is incumbent on the company to prove their case on a balance of probabilities and to adduce evidence that the claimant’s dismissal was for just cause or excuse.

4. Panel of inquiry taking the role of Prosecutor ( Zainal Abidin bin Abdullah v DI

Perdana Utara Sdn Bhd [2012] 1 ILJ 498)

There were only two panel members sitting on the said inquiry. The panel,prosecutor

and judge  was the same person in the domestic inquiry i.e. the human resources

manager who issued the show cause letter and suspension letter to the claimant. This was a clear reach of rules of natural justice hence the DI was defective and void.

5. Improper documentation of the DI notes (Guinness Anchor Berhad V. Wong Peng

Hong [2012] 4 ILR 236)

The handwritten notes and typewritten notes do not contain the signature of the DI Panel, the claimant and the claimant’s counsel. There exists discrepancies between the handwritten notes and the typewritten notes. Thus it casts doubt on the court as to the accuracy of the said DI notes and the benefit of doubt ought to be given to the claimant that the inquiry may not be the accurate record of the notes of proceedings in the DI. 

6. Employee did not understand the charge (Encik Mahaini Bin Mat Rasid v NZ Wheels

Sdn Bhd Award No 677 of 2013)

It is the duty of the employer to specifically set out all charges with all relevant particulars

without which he cannot defend himself. The object of this requirement is that the

delinquent workman must know what he is charged for and have the amplest opportunity

to meet the charge and to defend himself by giving a proper explanation, after knowing

the nature of the offence with which he is charged, otherwise it would amount to him

being condemned unheard. Fair hearing presupposes a precise and definite catalogue

of charges, so that the person charged may understand and effectively meet them. If the

charges are imprecise or indefinite the person charged would not be able to understand

them and defend himself effectively, and the resulting inquiry would not be a fair and just

Inquiry.

For more information, please contact us by;
Email: enquiry@iredge.my
Visit iredge.my
0172337805


Spread the love
  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •  
  •  

LEAVE COMMENT