Domestic Inquiry

Disciplinary Procedure

Question

What is the Statutory Disciplinary Procedure and when should it be used?

Answer

The Statutory Dismissal and Disciplinary Procedure applies to most dismissals and all disciplinary action excluding oral and written warnings.  However, an employer may (in the absence of a more detailed company procedure) chose to use the 3 step procedure in all disciplinary situations. The three steps require an employer to:

1. Send the employee a written explanation of the conduct or other circumstances that have led them to consider taking disciplinary action against them.

2. Invite the employee to a meeting to discuss the issue and inform them of their decision after the meeting is over.

3. Invite the employee to an appeal meeting – if they wish to appeal the employer’s decision.

Questions

I have been told that I can bring a colleague or trade union official with me to a disciplinary hearing and that they are only there to support me and cannot say anything.  Is this right?

Answer

Workers have a legal right to be accompanied at disciplinary and grievance hearings by a companion – that is a trade union official or work colleague.  The companion has the right to address the hearing to put the worker’s case, sum up the worker’s case and respond on the worker’s behalf to any view expressed at the meeting.  They may also confer with the worker during the hearing.  However, the companion cannot answer questions on the worker’s behalf, or address the hearing if the worker does not wish it.  It is good practice to allow a companion to participate as fully as possible during a disciplinary hearing.

Question

My trade union official is unavailable to attend my disciplinary hearing with me and when I asked my employer if they would reschedule until next week, they refused.  I don’t want to go on my own but there is no one else I can bring; does my employer have to reschedule the hearing?

Answer

Yes; an employer should permit a worker’s companion to have a say in the date and time of the proposed disciplinary or grievance hearing.  If the companion cannot attend on the proposed date the worker is permitted to suggest an alternative date and time, as long as it is reasonable and no longer than 5 working days after the original date. 

Question

Our disciplinary procedure says that a recorded oral warning will be held on file for 6 months, but an employee has recently said that is against the law.  We don’t believe that it is but are not sure; could you advise us on this?

Answer

The law does not stipulate how long any type of disciplinary warning should be kept on file, although the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures suggests that oral warnings be held for a period not exceeding 6 months and written warnings for a period not exceeding 12 months.  After these periods these warnings should be deemed spent and disregarded for disciplinary purposes.  The Data Protection Employment Practices Code recommends that a system should be set up to remove spent warnings from an individual’s record, where such removal is a requirement of your disciplinary procedure.

Inquiry

Question

How much notice should an employee get before a Domestic Inquiry is held?

Answer

A minimum of seven days and a maximum of 14 days is reasonable.

Question

Who can represent the employee at a Domestic Inquiry?

Answer

If the employee belongs to a trade union, he can ask to be represented by his trade union. A non-unionized employee can request for a willing colleague to assist him.

Question

Who can sit in the panel at a Domestic Inquiry?

Answer

The panel should comprise an odd number of persons who are employees of the company, usually three or five. The rank of the chairman should be equal or higher than his other panel members and almost always higher ranked than the employee. The panel is expected to be unbiased and exercise impartiality when hearing the evidence. There will also be a secretary, prosecuting officer and an investigation officer.

Question

What happens during a Domestic Inquiry?

Answer

First, the employer will present the evidence it has collected and bring in witnesses to support his arguments. Next, the employer will defend himself and can also bring in his witnesses and other evidence.

Question

What happens after a Domestic Inquiry?

Answer

The panel will adjourn to decide whether the employee is guilty or not. If the employee is found to be guilty, the panel will recommend to management an appropriate penalty.

After the Domestic Inquiry has been held the inquiry panel will decide whether the employee is guilty of all or any of the charges and if he is guilty, they may recommend a suitable penalty to management. It is for senior management, who appointed the panel, to actually decide upon the appropriate penalty.

Question

Can the employee appeal?

Answer

An employee covered by the Employment Act 1955 can complain to the Labour Department. For dismissals, the dismissed employee can claim for reinstatement at the Department of Industrial Relations.

DI Procedures

Question

My company is very small and I don't have enough staff and to form a panel for the domestic inquiry, what shall I do?

Answer

Ï You may seek assistance from your business associates who are familiar in domestic inquiry to help you out;

Ï You can engage labour consultancy firm to give you the necessary advice for which you have to pay;

Ï You may even ask the pastor of your church to be the panel chairman.

Question

I have two jobs, one full time and the other part time job. I was injured on the part time job, and because of the injury I am also unable to work at the full time job. Can I collect workers’ compensation benefits from my full time job?

Answer

No. Since you were injured on your part time job, any workers compensation benefits will be based on that employment.

Question        

My company has not paid my EPF, Income and Socso for the past 3 months. What can I do to get back my money?

Answer

You would need to proceed to the following agencies:-

Ï Labour office

Ï SOCSO office

Ï EPF office

In all these offices you would need to lodge a complaint pertaining to your employer's misconduct. It would then be the relevant agency's duties to conduct their investigations and thereafter to prosecute the company. Thereafter there can be some hope in recovering these arrears in payment.

Question

I have just started work in a new company and still under probation period. Yesterday, my boss said my performance did not up to his expectation and asked me to resign. What shall I do now? Can my boss fire me during my probation period? What is my right?

Answer          

Probationers also enjoy certain extent of protection under the Industrial Relations Act. In circumstances she ought not to sign a resignation letter for her employer as this would reflect that was the one who willfully left her job.

We would suggest for to wait until she is given her termination letter by her employer. Even though her employer is of the opinion that she is not competent there are procedures that the employer needs to obey. Opportunities for improvement are to be accorded to the employee by the employer before the employer can proceed to terminate the employee.

Question

Suspension pending enquiry why suspension during pending enquiry?

Answer

This is required when management considers that his physical presence might endanger the safety of other workman or if it is apprehended that he might intimidate others or tamper with the evidence. In such case subsistence allowance should be paid as per law.

Question

Holding of the enquiry what is the basic objective?

Answer

This is to find out whether the workman is guilty of the charges leveled against him in the charge-sheet, or not. In doing so, the enquiry officer gives the workmen a reasonable opportunity to defend himself by cross- examining the witness/ documentary evidences etc. produced against him. The workman can also make a statement apart from what he stated in reply to the charge-sheet.

Question

How much time should be given to the workman before the enquiry is held?

Answer

Not less than 48 hours from the date of receipt of the notice of the enquiry.

EVIDENCE

Question

What is evidence?

Answer

Ï Testimony and presentation of documents, records, objects, and other such items relating to the existence or non-existence of alleged or disputed facts into which a court enquires.

Ï Methods and rules that guide and govern the establishment of a fact before a court, collectively called the law of evidence.

Question

Who can be witness?

Answer

A witness is a person who can give a firsthand or factual account relevant to investigations and trials falling within the mandate of the court. Such a person could be a victim or another person who has relevant information. This factual account amounts to “evidence”. Evidence given by a witness during investigations becomes part of the case-file, or, if given during the trial, it becomes part of the formal record of the hearing. Anyone considered important in establishing the truth during the investigations and trials could be asked to give such evidence

Question

Who can witness a signature?

Answer

Laws vary based on the state and the purpose of the signature, but, in most cases, notaries public can witness any signatures except their own. When a notary public is not available, witnesses generally must be at least 18 years of age and of competent mind.

Question

Do I have to attend if I have been asked to give evidence?

Answer

If you have received a witness citation, you must attend. All witnesses must give evidence in court rather than have their statements read out. Failing to attend may result in a warrant being issued for your arrest. The procurator fiscal or police will contact you if you are no longer needed to give evidence. Advice, assistance and support services are available for witnesses. Special arrangements can sometimes be made for elderly, disabled or vulnerable witnesses. You can also bring someone to sit in the witness room with you when you come to court. Interpreters can be arranged if English is not your first language.

Question

How do I get back property taken during the investigation?

Answer

 Property is returned by the police once the case is finished and the appeal period has passed, which is usually around six to eight weeks

Question

Can I claim expenses for attending court as a witness?

Answer

Yes – using the form on the back of your citation, you can claim expenses for travelling to and from the court and an allowance for meals. Cash payments are only made in cases of genuine hardship or emergency. Exceptional costs such as taxi fares, air travel and overnight accommodation must by approved by the procurator fiscal in advance. If you have lost your citation, go to the procurator fiscal’s after giving evidence and you will be issued with a duplicate.

The Hearing

Question

What does pleading guilty mean?

Answer

If you plead guilty to a criminal offence (charge) it means you accept that you committed the offence and accept the facts as alleged by the police or other prosecuting body.

The offence is contained in the prosecution notice. You should have been given a copy of this notice but if not, the court and the prosecutor will have a copy.

The prosecution facts are contained in a document called the "statement of material facts". You should check what is in this statement before you plead guilty to be sure you agree with the prosecution's version of what happened.

If you do not agree with the facts in the statement, you should seek legal advice before you plead guilty. You can seek advice from your own lawyer or from a duty lawyer.

Question

What happens in court if I plead guilty?

Answer

When you appear in court you will be asked what you want to do. If you indicate that you want to enter a plea, the charge will be read out and you will be asked what your plea will be. If you say you are pleading guilty, the court will ask the prosecutor to read out the statement of material facts. The prosecutor may also comment on the seriousness of the offence and the appropriate penalty. The penalty is referred to as your "sentence".

You or your lawyer are then given an opportunity to present a "plea in mitigation" before the court proceeds to sentence you.

At any stage during this process, the court may choose to put your matter off to another day if it considers more information should be obtained before it sentences you. This may include ordering a report called a "pre-sentence report" that provides detailed information about you. Such a report is usually obtained when the court is considering a more serious penalty but may be obtained simply to obtain more information about you.

Question

What other orders can the court make?

Answer

At the time it sentences you, the court may also, depending on the circumstances:

Ï Order you to pay court costs

Ï Order you to pay compensation to the victim or victims

Ï Order that property seized from you be forfeited to the police and/or returned to the owner

Ï Cancel or suspend your driver's licence

Ï Order the destruction of drugs or other property

Ï Make a spent conviction order.

PENALTIES

Question

How Are Penalty Notices issued?

Answer

Parking Enforcement Officers can issue a Penalty Notice for a Parking violation by affixing it to the motor vehicle, serving it personally upon the driver at the time of the contravention, or delivering it personally to the motor vehicle owner as soon as reasonably practicable

Question

Will I be charged interest and penalties for filing and paying my taxes late?

Answer

Yes, when you do not file and pay your taxes on time, you will be charged interest on any unpaid balance, and you may also be subject to penalties, such as the failure-to-file and failure-to-pay penalties.

Ï Interest charged on any unpaid tax compounds daily from the due date of the return (without regard to any extension of time to file) until the date of payment.

Ï The interest rate is the federal short-term rate plus 3%.

Ï The federal short-term rate is determined every three months.

For current interest rates, visit the News Release and Fact Sheet Archive and look for the most recent Internal Revenue release about interest rates or search "quarterly interest rates" on IRS.gov; the relevant interest rate is the rate for underpayments.

Question

I am 55 years old and I wish to withdraw in full from my PRS account. Would I incur the tax penalty? I am an employee above 55 years old but still under employment and I continue to subscribe to PRS. Do I still incur an 8% tax penalty when I withdraw from my PRS account?

Answer

There is no tax penalty for withdrawal upon reaching retirement age of 55 years

APPEALS

Question

How should you convene and hold the disciplinary hearing?

Answer

If the Investigator recommends that there is a disciplinary case to answer, a disciplinary hearing should be convened without unreasonable delay while giving the employee proper time to prepare. The employer should appoint a senior employee to act as the Chairman of the hearing. If at all possible, the Chairman should be someone who has not been involved with, or acquainted with, the facts of the case and in any event should not have acted as the Investigator.

The chairman should be and be seen to be as impartial as possible. The employer's own disciplinary procedure (if it has one) may specify the person who should chair such a disciplinary hearing.

The Chairman should then write to the employee convening the disciplinary hearing (within any time limits specified in any internal procedure) providing:

full details of the allegations that have been made and why the conduct is not acceptable, what will be discussed at the hearing, including a clear indication that the hearing is a disciplinary hearing and that depending upon the outcome of the hearing, disciplinary action may follow;

Ï the date, time and place of the hearing;

Ï details of who will be present and what their function will be, including details of who the company will be calling as witnesses;

Ï confirmation that the employee is entitled to be accompanied at the hearing by a fellow worker or trade union official;

Ï confirmation that if the employee intends to have fellow employees as witnesses, they will be given reasonable time off work to attend the hearing; any relevant evidence, including witness statements from company employees; and an assurance that no conclusions have been reached or will be reached until the hearing has taken place.

The purpose of this letter is to ensure that the employee against whom the allegations have been made has a proper opportunity to put their side of the case and to respond fully to any allegations which are being made. This may require the attendance of the employer’s witnesses to answer questions from the employee, although in many cases it will be possible simply to use their statements.

In cases where a witness does not want to be identified and does not therefore want to attend the hearing to give evidence (such as if the matter is extremely sensitive or the witness fears for their safety), it may be possible to use anonymized witness statements. However, as this will limit the employee’s ability to question the evidence, employers should be wary of going down this route and should seek legal advice.

At the hearing, the Chairman should:

explain the purpose of the hearing to the employee, identify those in attendance and their role and explain the allegations which are being made;

ask the Investigator to state the case against the employee (including calling any witnesses and explaining any documents on which the company is relying);

allow the employee and their companion to ask questions about the company's case;

invite the employee to put their side of the story across, including by calling any witnesses they have and explaining any matters they want the Chairman to take into account by way of mitigation (for example an apology, or other circumstances of which the company was previously unaware); and ask the employee whether there is anything further they wish to say.

After he or she has heard all the evidence, the Chairman should consider his/her decision. If the Chairman has reached an honest belief in the employee's misconduct based on reasonable grounds, then disciplinary action may be justifiable.

It is important that the disciplinary action taken is proportionate to the misconduct which has occurred so before deciding whether to impose a disciplinary sanction and what sanction to impose (e.g. first warning, final warning, dismissal), the Chairman should consider carefully all the background to the case, including what the employee did; the impact of their actions; any action previously taken in similar cases; and the employee's former disciplinary record. The ACAS Code recommends that employees should be given at least one chance to improve before a final written warning is given. Employers should only dismiss without giving prior disciplinary warnings for cases of serious misconduct.

The Chairman should also carefully consider whether any other action, such as training, might be more appropriate than disciplinary action.

Unless the employer's own procedure specifies otherwise, the Chairman does not have to give a decision at the hearing and he will normally adjourn to consider the decision. In any event, the Chairman should write to the employee (within any specified time limits) to inform them of the decision which has been made. If the Chairman has decided that disciplinary action is required, the letter should also give the employee details of the right to appeal against the decision. The employee should be told to whom such appeal should be directed and any relevant time limits.

Question

What if the employee wants to appeal?

Answer

The employee should be given a right of appeal against any disciplinary decision. Indeed, appeals can be a very useful tool for employers who may have made mistakes in the early stages of a disciplinary process, to remedy any errors they have made.

Once the employer has received an appeal from an employee they should appoint a chairman to hear the appeal. The Appeal Chairman should, wherever possible, be someone who is senior to or at least as senior as the original Chairman and ideally they should not have been previously involved in the matter concerned. Unless any new evidence or circumstances have come to light since the original investigation, it will not normally be necessary to hold a fresh investigation. Rather, the Appeal Chairman should review the original Investigator's report and all the documents relating to the case. He should then invite the employee to an appeal hearing without unreasonable delay to discuss the grounds of the appeal. Again, the Appeal Chairman should write to the employee specifying:

Ï the date, time and place of hearing;

Ï who will be present at the hearing and what their role will be; and

Ï that the employee has a right to be accompanied.

At the appeal hearing the Appeal Chairman should ask the employee to explain the grounds of the appeal and to introduce any new evidence that has come to light. The original decision-maker should be asked to comment and to explain the reasons for the original decision

Once the Appeal Chairman has decided whether or not to uphold the appeal, he should write to the employee giving his decision and specifying whether or not the employee has any further opportunity to appeal. If the company's internal procedures give employees this right those procedures should be followed.

Question

Procedure for conduct of the Panel Hearing ?

Answer

This section defines the steps which should be followed during the Appeal Hearing itself. The Chair has discretion to vary the practicalities of these arrangements as s/he thinks fit as long as any changes do not contravene the basic principles set out in the Quality Manual Academic Appeals Policy sections 2.2.10 - 2.2.12.

a) An Officer will meet the student (if attending) outside the meeting before the Hearing and will offer to explain the procedure, check that the student has copies of the documents circulated to members of the Committee and, if not, provide a set.

b) If either the decision making body representative and/or the student has obtained prior agreement from the Chair to call upon other persons to attend the Appeal (see sections 4.4 and 4.5 above), the Chair will decide if they may attend throughout the proceedings until all parties withdraw, or whether they shall attend the meeting only while they give such relevant information.

c) The Chair will ask if any member has been personally involved in the student's case at any prior stage and, if so, will ask them to withdraw for the duration of the case.

d) An Officer will escort the student (if attending), the friend (if attending), and the decision making body representative into the meeting.

e) The Chair will introduce by name and explain the functions of the members of the Committee, the decision making body representative, and any others present.

f) The Chair will explain the powers of the Committee, as set out above.

g) The Chair will tell the student that the Committee will take their case to be as set out in their letter, and will ask if they wish to make a brief opening statement, or whether they wish the friend to do so on their behalf. If the friend makes the statement, the Chair will ask the student if they wish to add anything. The Chair will then explain that the Committee wishes to hear directly from the student in their own words, and that they will be expected to answer questions.

h) Members of the Committee will be invited to question the student.

i) The Chair will invite the decision making body representative to make a brief opening statement, and will then invite the Committee to ask questions. If the decision making body representative is accompanied by other colleagues, they will be afforded the same opportunity, and questioned.

j) At each stage the Chair has discretion to allow reciprocal questioning by the various parties.

k) The Chair will ensure that the members of the Committee have completed their questioning.

l) The Chair will ask each member of staff, in turn, and finally the student (or the friend) if they wish to make any closing statement, and if they are satisfied that they have had a full opportunity to explain their case to the Committee.

m)    The Chair will ask everyone except the members and Officers to leave the meeting, and will ask them to wait pending the Committee's decision.

n) The Committee will discuss the case.

o) If for any reason during its discussion the Committee requires clarification of any aspect of the case, by further questioning either the student or the staff, they must all be invited back into the meeting while the questioning takes place. They will then all leave the meeting again.

p) The Committee will make its decision.

Question

After the Panel Hearing

Answer

a) The decision, and any findings of fact, will be conveyed to the student and the other parties in writing, within two working days. If an appeal is disallowed reasons will be given in writing.

b) If the decision is to require the decision making body to review the original recommendation, the panel Chair will write to the Head of School or equivalent giving reasons for the Panel’s decision and including guidance as to a revised recommendation, if appropriate. If the decision is to refer the case to the Chair of Academic Appeals Committee (AAC), the panel Chair will set out the reasons and any recommendation in writing to the Chair of AAC.

c) A report on the outcome of the appeal will be made to Teaching & Learning Board as appropriate.

d) The Committee may, if appropriate, provide a written report to Teaching & Learning Board or one of its sub-committees raising such matters as shortcomings in School procedures or requesting advice on dealing with technical matters in hearings.

REPORT ON VISIT

April 2015, Human Resource Management Department had organized an industrial visit for fifty students which class by HRM 1,2,3,4 & 5 who were accompanied by two of the faculties of the department. The visit was to the Ministry Of Human Resource at Putrajaya.

The visit conducted on college hours during on subject related visit and started traveling from Saito College at 9.00 a.m. We reached to Ministry Of Human Resource early morning 10.00 a.m. Briefing conducted by two person of HRDF. The first Briefing conducted by Mr. Rosary. He was explained us about the vision, mission and background of Ministry Of Human Resource. The main purpose of to know more regarding domestic inquiry and to ask questions to the higher officer.

All the questions were not answer but the briefer manage to answer some of the question with a proper answer. Is helps us to know more about each topic. This industrial visit to Ministry Of Human Resource benefits me a lot. It helps us to know the important resources, and the approach to help us to know about domestic enquiry. The strategies of the domestic inquiry.

 

The advantage of the visit is get to learn many news things happening in Malaysia for domestic inquiry. Briefly get to know more about GST. The benefits of the GST and the main purpose of it. We got the chance to the small strike of GST. The disadvantages is we no enough of time to know more briefly about the questions we prepared. The briefer is too hurry and fast to finish the brief because of shortage of time. 

The difference between industrial learning and class room learning is the scope of the learning. In industrial learning I can develop my workplace knowledge and skills. It also defines career objectives of the organizational environment. Industrial learning enables the opportunity to build communicational skills with other people. It also encourages me grow personal skills. In class room learning I know learn more theoretical knowledge. Its helps me easily to get more learning process. Its small group which is more understanding.

All the students are extremely thankful to honorable lecturers Ms. Priya officials at organizations who grant the permission of visiting their organization and guide the students. We are sure that this visit will help us in our future practical life and bring a positive change in our thinking and practical behavior regarding education and specially Human Resource and further career enhancements. At 12.00 p.m. we took college bus and reached college at 1.00 p.m.