NATURAL JUSTICE
An employer ought to give an employee the opportunity to be
heard because it is one of the fundamental principles of natural justice which
no employer can afford to ignore. In R
vs CambridgeUniversity (1715) I Strange 557 at 567;93 ER 698 at 704 Fortescue J
explained that “Even God did not pass sentence on Adam before he was called
upon to make his defence”
Industrial Court (IC) Award 88/74 The court made a remark
“Natural justice requires that no man be condemned unheard”
the Principles of Natural Justice :
1. Audi alteram partem - both sides shall be heard
IC Award 138/85, the Court held
that there should be due inquiry with charge or charges framed and the employee
given ample opportunity to defend himself or be heard.
2. Nemo judex in propia causa - no
man shall be judge in his own cause.
IC Award 247/86 is emphatic when
it states :- IC Award No. 142 of 1986
serves as a good lesson for the employer.
Great care must be taken to see that the rules of natural justice are
followed……..
In Surinder Singh Kanda vs Government of the Federation of
Malaya (1962) MLJ 169 Lord Denning had this to say: …..The rule against bias is one thing. The right to be heard is another. Those two rules are the essential
characteristics of what is often called ‘natural justice’. They are the twin pillars supporting it. They have recently been put in two words
‘impartiality’ and ‘fairness’. But they
are separate concepts and are governed by separate conditions. The workman must know what evidence has been
given and what statements have been made affecting him: and then he must be
given a fair opportunity to correct or contradict them. In the case of Board in Ceylon University vs Fernando (1960)
the Lordship made a remark ‘whoever has
to adjudicate must not hear evidence or receive representative from one side
behind the back of the other’.
CHARGES
The charges or allegation against the accused must be very
clear. The charges cannot be vague
and baseless as company’s rules and
regulation must be cited with the
charges. IC has made it clear vide Award
No. 86 of 1977 and Award 82 of 1982 that charges should not be vague and should
cite the company rules and regulation which have been breached.
NOTICE OF INQUIRY
1. That
the notice of inquiry should mention the
right of the accused to cross-examine the bank’s witness.
2. To
provide the accused with copies of all statements of all witnesses together
with the notice of this inquiry for the accused to prepare his defence before
the inquiry. Copies of statements of all
witness should be extended to the accused before the inquiry as per Award
164/85, 87/86, 279/86 and 252/88 which held that copies of the statements of
all witnesses should be extended to the accused before the inquiry.
3. The
CHARGES.
PUNISHMENT
IC Award no 50/86: was stated that withholding of annual
increment is considered a form of punishment.
VICTIMISATION
we should observed the defects of victimisation
is very clear such as :
the Investigation
Officer (IO) who investigated this
case :
1. never
ever issue any query to the accused and also failed as IO to take proper
statements from the accused. IO should
identify that his investigation should not violate the internal system of the
organization. E.g. that it is clear that
the Audit Division violated their own rule as clearly stated in the Audit
Manual that “ Workman will be provided with the opportunity to formally respond
queries and their comments will be included in the final report” and that “a
draft report for discussions with the workman will be produced at the end of
each investigation within 4 weeks after the completion of the investigation
work” The IO should ensure not to violate the company’s own rule and ethics.
2. IO
should look out for contradictions in the statements by various witnesses.
3. IO
to check and ensure whether the company has in the past condoned such
misconduct by me and other employees. Award 136/93 and 179/93.
4. IO
should not attempt to cover up major weaknesses on the company’s system in the
course of his investigations and thereby violate his own code of ethics. IC Award
148/85, whereby in the course of his investigation, the IO should not
cover up weaknesses of the company.
i)
IO should be independent while investigating the
case. He should maintain fairness and
not allow prejudices or bias or influence of the others to override
objectivity. IO state whether the
incident occurred because of the shortcomings in the company’s working
system. He should highlight the
integrity of the data and facts obtained
Also IO should highlight the
mitigating factors that certain consideration should be given to the accused,
if any such facts exist. He should not rely on one person or one source to
obtain facts.
5. IO
should be sure which particular rule or
regulation of the company that the accused breached. IO should not proceed to
propose there is a case against the workman if he is uncertain of the
violation, as the accused may later prove
the uncertainty of the Investigation Officer. I wish to refer to IC Award 82/82 whereby he
should ensure that the charges relate to the company rules and
regulations. To punish a worker for a
misconduct which do not appear in the company’s rules and regulations is very
questionable. Management should not be
misrepresented by the IO.
6. The
IO did not check all other departments/units/sectors as the way he checked on
the accused to ensure that there were so such similar issues in the past or
presently happenings. This is a clear
victimisation as no other departments/units/sectors were checked in this manner
i.e checked backwards eventhough the various years audit reported satisfactory
and the checking was done after the accused was transferred out of that
position. IO should be sure to confirm
whether there were earlier such similar incidents that were condoned by the
management.
IO should not give
his personal opinions
The IO should not give his personal opinion or views during
presentation, but confine himself to the facts arising from his
investigations. Award 279/86
IO is not allowed to
ask any question
IO should remain a
neutral position
IO should present his case as this is his job and should
remain neutral. He should not have
personal interest against the accused.
Prosecutor (failed
to) : Obligations of the Prosecutor
- Must call the complainant to be a witness during the prosecution and to allow the accused to cross examine him. When prosecutor failed to call the complainant - Ref. Holiday Inn Hotel, Penang and National Union of Hotel and Restaurant Workers (Award No. 90 of 1987) whereby the company failing to call two material witnesses to give evidence at the enquiry and by failing to take into account their recorded statements, has violated the principles of natural justice.
- That the notice of inquiry did not mentioned the right of the accused to cross-examine the employer’s witness.
- To provide the accused with copies of all statements of all witnesses together with the notice of this inquiry for the accused to prepare his defence before the inquiry. Copies of statements of all witness should be extended to the accused before the inquiry as per Award 164/85, 87/86, 279/86 and 252/88 which held that copies of the statements of all witnesses should be extended to the accused before the inquiry. Call all witnesses that gave statements to the IO during his investigation for the accused to cross-examine. - IC Award 282/87.
- That the person who made the allegation did not personally see the incident. IC Award 304/87.
- The charges or allegation against the accused must be very clear. The charges cannot be vague and baseless as company’s rules and regulation must be cited with the charges. IC has made it clear vide Award No. 86 of 1977 and Award 82 of 1982 that charges should not be vague and should cite the company rules and regulation which have been breached.
- Management must allow the accused to call any witness as he wish and expenses to be borne by the company, if any. Management should not harass the witness requested by the accused. Witnesses should not be intimidated by harassing him/her on the expenses claimed
- A clear victimisation and injustice when the request by the accused to postpone on an inquiry session for purpose of preparation being denied. There is a clear case of reference : United Traction Co. Sdn Bhd Butterworth and Transport Workers Union (Award No. 40 of 1987) whereby workman requires sufficient time to study the statements made by the witness.
- The Industrial Relation manager took very lightly on the request for witnesses and informed the accused that it is just a request and is not an order is violation of natural justice.
- Comply to IC award No. 164/85, 87/86, 279/86, 152/85 & 142/86 when documents pertaining to the case were given to the panel prior to the inquiry i.e. before the start of the first session. The award stressed that the panel should not read any statements or reports pertaining to the accused or the case prior to the inquiry
PANEL OF INQUIRY
1. Which should have only copies of the charge
sheets prior to the inquiry had already had and read the file of the case prior
to the charge being read out to the accused.
Panel member should not read any statements or even look into any
records pertaining to the case before the inquiry. In this instance, this inquiry is indeed
defective and unfair - IC Award 152/85 and 142/86. Panel
put questions as they had previous knowledge of the facts. Panel should never be briefed before, during
or even after the hearing of the case.
Ref. Malayan Tobacco Co. Bhd and
Chow Yong Peng (Award No. 87 of 1986)
& Ref. Lori Malaysia Bhd and Transport Workers Union
(Award No. 69 of 1987)
2. The Chairman
or any of the Panel members did not explain the ground rules of the inquiry to
the accused as to the process when he should cross-examine the witness and when
to commence his defence.
3. The
panel members should ask, listen and
consider the valid preliminary objections raised by the accused.
4. It
is of primary importance to bring to the attention of the Panel members, even
though all the Panel members are being appointed by the management to conduct
the inquiry it does not necessarily follow that the Panel members should uphold
the management’s case against the
accused. He should not be found guilty just simply because one or more senior
member of the management personally wanted so. This
inquiry should not be a vehicle for the management’s victimisation against the
accused. The panel’s decision should
be based on facts that are substantial and reasonable.
5. Panel should not ask incriminating
questions
Panel should confine themselves to questions that would clear any
doubts.
Award 347/86
6. Chairman and Panel members should know and
have knowledge that IO should not give
his personal opinions pertaining to
the case against the accused.
The IO should not give his personal opinion or
views during presentation, but confine
himself to the facts arising from his investigations.
Award 279/86
and also IO is not allowed to ask any question
7. Appointment
of the panel, by whom?
The
panel should be appointed by Head of HR or any other such person who is higher than the accused.
ERROR BY MANAGEMENT
1. Condonation : By doing so the management had condoned the misconduct,
if any. Chairman of Industrial
Court in the Bank Bumiputra (M) Bhd and
George Thomas warned that “Even if the
workman is guilty of the charge, the bank having failed to take action after a
very long period of time had condoned the mistake/misconduct, if any.” The award went to say that “once an employer had condoned any misconduct
which would have justified dismissal or fine, the employer cannot after such
condonation go back upon the employer’s election to condone and claim right to
dismiss the employee or to impose fine or any other punishment in respect of
the offence which has been condoned”
(Condonation : forgiveness or
passing over without any blame.) Another
case is there should be no discrimination between one employee and another for
the same offence committed under the same or similar circumstances. The panel and the PO should not try to cover
the company’s weaknesses. The bank
should not adopt double standards in meting out punishments Ref. Chartered Bank and NUBE (Award No. 104
of 1983) and also Award 115/87.
2. Failed
to conduct the inquiry within reasonable time. In the IC Award 282/87 “the inquiry was found
improper that the bank did not take action against the accused until seven and
a half months after the incident. Employer extend beyond the time within which
the employer might reasonably be expected to take decision. In this IC case, the bank should have acted
within a reasonable time and certainly waiting for about 6 months is not
considered to be reasonable time. Ref.
BBMB and George Thomas (Award No. 282 of
1987)
3. Postpone
the cases several times after written notice being issued to the accused
beside the verbal information being conveyed by the Industrial Relation
officer. This has caused duress on the
accused and had effected his health and if able to prove shall be considered as
victimisation.
4. If
the charges related in the process of inquiry
show or prove gross negligence
and lack of efficiency on the part of the management. The Industrial Court Award No. 137 of 1986 (
UMBC and ABOM) found it necessary to emphasise the unsatisfactory system of
operation which prevailed in the bank during the material time which suggested
gross negligence and lack of efficiency on the part of management. The accused may reiterate the inefficiency on
the part of the management which now tried to throw the blame on an employee in
the process of victimisation against employees.
5. Code of Conduct for Industrial Harmony
The issue of Code of Conduct for Industrial Harmony which was signed by the
Malayan Council of Employers’ Organisation (MCEO) and Malaysian Trades union
Congress (MTUC) and the Minister of Labour and Manpower Malaysia signed on 9th
February 1975 and became law as from 30th May 1980 as the code is
envisaged by Section 30(5A) of the Industrial Relation Act 1967.
It is doubted
that management of many companies are
aware of the existence of such Code of Conduct.
To highlight few
points:
When management is seen to be very keen to punish employees,
management neglect their essential duties to establish complete and proper
rules and regulations and to make such rules and regulation readily available. That is not all, management should make every
effort to ensure that employees know and understand them (rules &
regulations) and the best way to achieve the same is to give every employee a
copy of the rules and by explaining them orally.
6. DOUBLE JEOPARDY
1.
Punished Twice
Another issue that should be noted is the issue of double
jeopardy whereby a suspect or wrong-doer is dismissed after an earlier
punishment say, in the form of transfer.
Ref. MAS and A.T. Xavier (Award
No. 92 of 1983)
Withholding annual increment. Award no. 50/86, it was stated that withholding of
annual increment could be considered a form of punishment for misconduct.
Principles of Nemo Debat Bis Puniri Pro Uno Delicto ie. No one should be punished twice for one fault Where is the natural justice, only
victimisation of highest degree is obvious.
I wish to quote the Industrial Court President Fong Seng Yee in the IC
Award No. 247 of 1986 as said “Award No. 142 of 1986 serves as a good lesson
for the employer. Great care must be
taken to see that the rules of natural justice are followed. If there is any failure in that respect by
the employer, the employer has to pay dearly for the error, so that security of
employment, a commodity now precious, can be safeguarded.”
- Charged Twice
A person should not be charged twice for the same offence.
7.
Charges cannot be amended when case is taken to Industrial Court
Decide
specifically as regards to the offences and the charges because no change is
permitted. Ref. UMBC, Taiping and ABOM (Award No. 137 of
1986)
8. Amend
of charges at the inquiry
Should the company amend or add to the
charges, an extension is compulsory.
IC Award 55/84
To amend the charges at the
inquiry would give the accused insufficient time to prepare his case and this would certainly
be a violation of the principles of natural justice. Award 137/86
9.
Charges cannot be added at the inquiry
(Award no. 89
of 1982) Charges cannot be added or amended during the inquiry process.
10. Reluctant to allow senior executives to be a
witness Award 7/74
WITNESS
The company failing to call two
material witnesses to give evidence at the enquiry and by failing to take into
account their recorded statements, has violated the principles of natural
justice. Ref. Holiday Inn Hotel, Penang
and National Union of Hotel and Restaurant Workers (Award No. 90 of 1987)
12. EVIDENCE
Oral evidence must be direct -
must be from person who saw it.
-
Must be from person who heard it
The employer must produce convincing evidence that the
workman is guilty of the charge.
Ref. Wah Soon Sdn Bhd and Lau Ah
Yu and Low Sang Lee (Award no. 240 of 1986)
13. Equality of punishment
There should be equality of punishment, if the charges and
the past records(of a previous case) are the similar, there should be no
difference in punishments. Award no.
115/87.
14. Unsatisfactory system of operations in the company
The court found it necessary to emphasise the unsatisfactory
system of operations which prevailed in the bank during the material time in
which suggested gross negligence and lack of efficiency on the part of
management. Ref. UMBC, Taiping and ABOM
(1986) ILR 684 (award no. 137 of 1986)
15. Panel
should not read reports prior to the inquiry
Panel should not read any other statements or report
pertaining to the accused or the case prior to the inquiry. Award 152/85 & 142/86
IO should not extend copies of the statements of witnesses
to the panel. Award 164/85, 87/86 and 279/86
16. Copies of statements of all witness should
be extended to accused before the
inquiry.
Award 164/85, 87/86,
279/86 and 252
RIGHTS OF THE ACCUSED
The simple but golden
rule for the accused - which
employers will do well to remember when conducting inquiries of this kind is to
make certain that the worker against whom disciplinary action may be taken,
actually see and hear all the witnesses from whom statements are taken and that
he is allowed the opportunity of not only confronting but also questioning them
one by one.
Withholding annual increment
Award no. 50/86, it was stated that withholding of annual
increment could be considered a form of punishment for misconduct.
Panel should not ask incriminating questions
Panel should not play the role of asking incriminating
questions. Instead the panel should
confine themselves to questions that would clear any doubts. Award 347/86
Condoned to similar
acts
The IO should verify that the company has not condoned to
similar acts of misconduct in the past and examine the company’s security
system and working procedure. The
purpose of this exercise is to ensure that the company itself is beyond
reproach before the company pursues a case against the accused. The company should not use the accused as a
scapegoat for its fault and shortcomings.
Award136/93 & 179/93
IO should not cover
company’s weaknesses
In the course of his investigations, the IO should not
attempt to cover the major weaknesses of the company.
CHECK AND TO DISCUSS
THE METHOD OF RECORDING
Notes should be verbatim, i.e. in the form of questions and
answers (award no. 66 of 1976)
Closing remarks
For the summary - Misconduct
outside the sphere of employment
If the employers had carried defective inquiry or the rules
of natural justice had not been
observed during the inquiry process. The
inquiry must be seen to be must in fact be conducted in a fair and impartial
manner
For further questions, email to : bang.the.bank.my@gmail.com
