Tag: Domestic Inquiry

  • The Absence of a Domestic Inquiry is not Fatal

    The Absence of a Domestic Inquiry is not Fatal

    section 14(1)(a) of the Employment Act 1955

    A “Due Inquiry” or “Domestic Inquiry” is one of the processes that must be carried out before dismissal for misconduct can be justified, as required by section 14(1)(a) of the Employment Act 1955.

    This procedure must be carried out before the dismissal can be justified.

    When wrongdoing is alleged to have been committed by an employee, this provision’s goal is to ensure that the concept of Natural Justice, which states that the employee has the right to be heard, is upheld through a thorough investigation.

    Domestic Inquiry

    A domestic inquiry, also known as a “DI,” is an internal investigation procedure carried out by an employer to investigate an employee’s behaviour while on employment, specifically to determine whether or not the person has committed an act of misconduct.

    The DI is a procedure that allows the allegedly guilty employee to respond to the allegations that have been made against him.

    However, section 14(1) of the Employment Act 1955 does not define and does not define or clarify what constitutes “due inquiry” or how an investigation has to be carried out.

    Practical Questions

    Then,

    • Does this imply that the employer must carry out an official DI before dismissing an employee for misconduct?
    • What repercussions will this have for the employer if an employee files a complaint against his employer for unfair dismissal because the employer did not conduct a DI?

    Gissco Sdn Bhd vs Jagjit Singh Mahinder Singh

    In Gissco Sdn Bhd vs Jagjit Singh Mahinder Singh (Award No: 13 of 1988), the Claimant is dissatisfied and seeks to refer the following question to the High Court:

    • Does the Industrial Court have jurisdiction to ignore provisions making it mandatory to hold an inquiry under the Employment Act 1955 in making an award under Section 30 of the Industrial Relations Act 1967?
    • Can the Industrial Court conclude that the Claimant was dismissed with just cause and excuse in the absence of an inquiry?

    The Evaluation Of Evidence And Findings

    The late Fong Seng Yee, the then president of the Industrial Court, observed that:

    • The absence of a domestic inquiry or the presence of a defective domestic inquiry is not a fatality but merely an irregularity.
    • It is open to the company to justify its action before the tribunal [the Industrial Court] by leading all relevant evidence before it and by having the entire matter open before the tribunal.
    • Unless the Industrial Court has found that the dismissal was without just cause or excuse, the Industrial Court has no jurisdiction to offer any relief

    Conclusion

    The absence of an inquiry is not fatal to the Company’s case.

    Simply put, employers do not necessarily have to carry out a formal DI.

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  • Domestic Inquiry is not a MUST

    Domestic Inquiry is not a MUST

    Leave cannot be claimed as of Right; the Employer reserves the Discretion to Refuse or Revoke the Leave
    Photo: 金老大

    M Company v. IBS

    • Industrial Court, Kuala Lumpur
    • [Case No: 4/4-334/94 (15 August 1994)]
    • 27 September 1995

    The Claimant contends that

    • he had been dismissed without just cause or excuse on 1 December 1993;
    • the company’s failure to hold a Domestic Inquiry before dismissing him, and this was a gross violation of natural justice.

    The Company contends that

    Photo: 李馨怡

    • the claimant’s absence from work from 27 November 1993 to 1 December 1993, although he had alleged, he had important personal matters to attend to
    • the claimant’s services as a lorry driver were terminated by himself for being absent from work for more than two days without informing or attempting to inform of the excuse before or at the earliest opportunity during such absence.
    • the claimant was not dismissed but had contravened s. 15 of the Employment Act and had terminated his own contract of employment as a lorry driver.

    Reason of the Claimant for absence:

    • had to be in Jengka, Pahang, from 27 November to 1 December 1993 to attend to his school-going children’s needs.

    Leave Application Procedures

    Photo: Tahir Khan

    • Before taking a leave of absence, any employee who is planning to do so is required to fill out an application for leave and acquire approval for their time off.
    • The leave needed to be reviewed and approved by the appropriate authorities before taking it.

    The claimant was aware of the procedure as he had previously put in a proper application for leave.

    Employment Act 1955

    Section 15(2) of the Employment Act 1955 provides inter alia:

    An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.

    The Law

    The employment contract binds the employee, and as part of that contract, he is required to report to work each and every day unless he was authorised not to do so (on approved leave or rest day).

    The Evaluation Of Evidence And Findings

    The claimant, in his testimony, under cross-examination, admitted he did not contact the company anytime between 27 November 1993 to 1 December 1993.

    The Conclusion

    1. On Domestic Inquiry

    On the need to hold a domestic inquiry, the Court reminded itself on the decision of the highest Court that it is now not necessary to hold an inquiry before dismissing the employee.

    For a breach under s. 15, the Court was of the view that there is no need for an inquiry.

    2. On Dismissal Without Just Cause or Excuse

    The Court holds that the claimant’s reason for absence to attend to his domestic needs may be a reasonable excuse but finds that the claimant failed to inform or attempt to inform the company at the earliest opportunity before or during his absence.

    The Court further finds as a fact the claimant had not applied for leave before his absence.

    Employers can refuse or revoke leave at their discretion

    It cannot be denied a workman’s leave is granted according to the exigencies of his service. Leave cannot be claimed as of right, and the employer reserves the discretion to refuse or revoke leave.

    It, therefore, connotes the necessity of obtaining permission from his employer, relieving him from the obligation of attending his work.

    Unless the permission or leave required is granted, the workman seeking leave cannot absent himself from work. Until and unless a workman’s leave is approved by the proper approving authority, he runs the risk of being absent without leave and in breach of the statutory provision in the Employment Act.

    The Court found that the claimant had committed a fundamental breach of his employment contract by absenting himself from work for more than two days from November 27, 1993, without reasonable excuse and without proper leave.

    Award

    The claimant’s claim is dismissed.

    Our website's articles, templates, and material are solely for reference. Although we make every effort to keep the information up to date and accurate, we make no representations or warranties of any kind, either express or implied, regarding the website or the information, articles, templates, or related graphics that are contained on the website in terms of its completeness, accuracy, reliability, suitability, or availability. Any reliance on such information is therefore strictly at your own risk.

    Keep in touch with us so that you can receive timely updates |

    要获得即时更新，请与我们保持联系

    1. Website ✍️ https://www.ccs-co.com/ 2. Telegram ✍️ http://bit.ly/YourAuditor 3. Facebook ✍

    4. Blog ✍ https://lnkd.in/e-Pu8_G 5. Google ✍ https://lnkd.in/ehZE6mxy

    6. LinkedIn ✍ https://www.linkedin.com/company/74734209/admin/

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