The Art & Science:

Handling Domestic
Inquiry

WHAT IS MISCONDUCT?
o Dictionary meaning is .

Improper behaviour

Intentional wrongdoing or deliberate violation of a rule

of standard of behaviour
o In Industrial Law...

o An act or conduct that is prejudicial or likely to

prejudice the interests of the master or to the
reputation of the master
o Any conduct on the part of an employee inconsistent
with the faithful discharge of the duties of an employee
towards his employer, unless it be of trifling nature,
would constitute an act of misconduct

Types of punishment
Counselling
Verbal Warning
Written Warning
Final Warning
Freezing Increment/ Bonus (not contractual)
Transfer
Suspension
Salary Reduction
Demotion
Dismissal

MINOR
MISCONDUCT
includes but is not limited to the following: Late-coming to work
Leaving the workplace early
Absenteeism, usually less
than 2 days
Quarrelsome at work place
Carelessness causing minor
damage to Companys
property

Removing or defacing or
destroying Companys
notices
Failure to wear uniform at
work place

Failure to furnish information

Malingering and feigning
illness

Loitering during work hours

Smoking in restricted areas
Failure to follow safety
procedure
Infringement of safety
regulation which does not
cause damage to property or
person
Unnecessary wastages of
documents and materials
Abuse of Companys property
Refusing to accept servicing
of documents from Company
Negligence in the care of
tools, equipment and
apparatus
Failure to keep work place
clean and tidy
Obstructing other employees
from work.

MAJOR MISCONDUCT
includes but is not limited to the following:-

Misappropriation of
Companys money or
property
Theft/pilferage of
Companys money
property
Fraud, dishonesty or
falsification
Cheating the Company
Fighting with other
employees or visitors
Assaulting another
employee or visitor
Soliciting or accepting
illegal gratification
Participation in illegal strike
Wilful insubordination or
disobedience

Breach of fiduciary relationship

Spreading malicious rumours
about the company
Gambling in the company
premises
Gross negligence and neglect
of duty
Wilful damage of Companys
property
Sleeping while on duty

Possession of illegal weapon

Riotous or indecent behaviour
Smoking in prohibited areas
Drunk while on duty

BURDEN & STANDARD OF PROOF

The onus is on the employer to prove the case
against the accused
In doing so and even if the charge is criminal in
nature, the employer must satisfy the panel of
inquiry/court, on a balance of probabilities, that
the accused committed the misconduct
accused of.
TELEKOM MALAYSIA KAWASAN UTARA V.
KRISHNAN KUTTY SANGUNI NAIR & ANOR [2002]
3 CLJ 314 [CA]

Balance of Probabilities
Imbangan Kebarangkalian
The English case of Miller v Minister of Pensions
describes the civil standard of balance of
probabilities as follows:
It must carry a reasonable degree of probability
but not so high as is required in a criminal case. If
one can say we think it more probable than
not the burden is discharged.

Statutory Provision on Discipline

s. 14 of the Employment Act 1955 provides after due inquiry
the following punishments for misconduct:
Summary dismissal

Downgrading
If the court is requested to rule whether in the absence of
provision in the contract of employment of the power to
demote, an employer can demote, it is prepared to rule
that an employer may do so. It would agree with the
submission of learned counsel for the company that if a
case merits dismissal but the employer chooses to demote
it was only being kind to the employee. The court sees
nothing wrong in that.
MEDIPRO MANUFACTURING (M) SDN BHD V. SITI AZMAH
MAT TAIB [1999] 1 ILR 349

Rules of Natural Justice

Meaning :The Rules of Natural Justice are the minimum
standards of fair decision-making imposed on
persons or bodies acting in a judicial capacity
It may be summed up as:
No man shall be condemned unheard.

Two Basic Rules

Nemo Judex In Causa Sua
No man must sit in judgement in a matter in which he has either an
interest or is biased
Examples:
Inquiry officer is the complainant or was the investigation officer
Inquiry officer had previously punished the accused for another
misconduct

Audi Alterem Partem

The parties must be given a fair hearing
What constitutes Fair Hearing?
Prior Notice
Sufficient time to answer the allegations
Full facts of the case should be clearly stated
Fair Opportunity
Accused to be permitted to bring his witnesses and
cross examine Companys witness.

Stages of Disciplinary Process

Preliminary Investigation
Service of Show Cause Letter

Letter of Explanation From Accused

Notice of Inquiry

Suspension Pending Inquiry

Appointment of Panel Members
Conduct of Inquiry
Panel Decision & Report
Disciplinary Action

Writing a Show Cause Letter

Avoid statements which prejudged the case.
Give full particulars.
Charge should be specific.
Include 1/2 pay or full pay suspension

Refrain from generalising

Helps prosecutor prepare his case.
Accused might admit guilt at this stage

Notice of Inquiry
Why?
- Accused may have denied allegations in explanation or;
No explanation offered
Not answering the charge
Content of Notice of Inquiry
Charges may be amended based on reply to SCL
Date, time & place of inquiry

Permit accused to produce witnesses

1/2 or full pay suspension pending inquiry
Failure to attend - ex parte hearing

No external parties permitted.

Qualification & Appointment of

Panel Members
No prior knowledge of facts of the case
Not immediate superior
No personal ill feeling
No involvement in any previous disciplinary action
Not a HR Department Staff
Ideal number is three

IO should not be panel member

Panel to be extended copy of charge sheet

The Role of Chairman

To have overall control of the running of the inquiry.
To ensure that the alleged employee understands the
charge by reading and explaining its contents at the
start of the inquiry
To allow the prosecutor, the alleged employee or his
union official to submit their evidence.
To ensure that all witnesses are produced to testify in
front of the Panel.
To keep all records, evidence and exhibits adduced
during the inquiry.
To delegate specific duties to the panel members as
he thinks fit in the conduct of the inquiry.
At the end of the inquiry, he is to deliberate on the
case with the panel members and make a finding.

DI - Role of Witnesses

The role for both the employer and the

alleged employees witnesses testifying
during the inquiry is to answer questions as
directed to them.

They should state what they personally saw,

or know about the case.

They should not fabricate evidence for

whatever reason.

Their role is to tell the truth.

DI - Role of the Secretary

To write down all proceedings verbatim i.e
word for word, throughout the course of the
Domestic Inquiry.
Once complete to pass on all the notes of
inquiry to the Chairman.
To ensure that there is no dispute from the
defense, the notes, should be counter
signed by the alleged employee.

Inquiry Proper
Introduction

Presentation of defence

Ground rules

Examination in Chief /
Evidence in Chief

Read out & explain

Cross examination

Presentation of
Companys case

Re examination

Examination in Chief
Cross examination
Re examination
Panel questions

Submission

Accused
Company
Accused
Panel Deliberations
Report writing