Practical Approach In Handling Domestic Inquiry

WELCOME
PRACTICAL APPROACH IN
HANDLING DOMESTIC INQUIRY
TRAINING

LEARNING OBJECTIVES
 What is Misconduct
 Understand what is a Domestic Inquiry (D.I.)
 Why conduct a D.I.
 Learn how to conduct a D.I.
 Understand the importance of proper conduct of D.I.
 Learn points that must be remembered at the D.I.
 Understand what constitutes a defective D.I.

AN OVERVIEW OF DOMESTIC INQUIRY
&
ROLES OF PANEL MEMBERS

WHAT IS THE MEANING OF
DOMESTIC INQUIRY
Domestic – Internal
Inquiry -
(a) Hearing of the Case
(b) Recording Evidence
(c) Admitting Documents
(d) General completion of the records upon which a
finding would be based

WHAT IS MISCONDUCT?
o Dictionary meaning is….
a) Improper behavior
b) Intentional wrongdoing or deliberate violation of a rule of
standard behavior
o In Industrial Law
a) An act or conduct that is prejudicial or likely to prejudice the
interest of a master or to reputation of the master
b) 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

Domestic Inquiry definition
An employer-led investigation aimed at discovering
facts and information about a situation in which an
employer has accused an employee of misconduct.
A domestic inquiry typically follows a ‘show cause’
letter, which is sent to the employee requesting an
explanation for the alleged misconduct. If the
response is not satisfactory, the employer will move
to the more formal domestic inquiry.

CONTINUE
• Note that the domestic inquiry is
purely an information-gathering
exercise i.e. the panel tasked with
gathering the evidence do not
make decisions over guilt or
punishment. Their final report is
sent to the relevant parties, often
senior leaders, who then decide on
the appropriate course of action.

WHY CONDUCT D.I.
Natural Justice
So what is Natural Justice?
- Two (2) basic rules:-
1. Nemo Judex In Causa Sua
2. Audi Alterem Partem

QUALIFICATION AND 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 3
• IO should not be a panel member
• Panel to be extended copy of charge sheet

D.I.- 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 form up a finding and an opinion
together with the recommendation on the disciplinary action
to be taken against the alleged employee.

D.I. ROLE OF PROSECUTING OFFICER
• To submit his case to the Chairman.
• ‰To produce his witnesses in front of the
panel and submit evidence therefrom.
• To summit exhibits for the case.
• To allow his witnesses to be cross examined
by the alleged employee or his union
official.
• To cross examine witnesses produced by
the alleged employee.
• To make his submission at the close of the
inquiry as allowed by the Chairman.

ROLE OF UNION OFFICIAL (if any)
• The union official representing the alleged
employee will assume the role similar to
that of the Prosecuting Officer, except that
his role is to represent the alleged employee
in making his defense

D.I. – ROLE OF WITNESS
• 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.

D.I. – ROLE OF SECRETARY
• Normal proceeding in a DI, the Chairman / one of
the panel members will write down all the
proceedings (notes of the inquiry)...
• To write down all proceedings (typed), word for
word, throughout the course of the Domestic
Inquiry.
• ‰Passed on all the notes of the inquiry to the
Chairman.
• To ensure that there is no dispute from the defense
the notes should be counter signed by the alleged
employee.

D.I.- ROLE OF ALLEGED EMPLOYEE
• To be present in front of the Panel of Inquiry to defend himself
• If he is represented by his union official, to allow him to question
the witnesses.
• If he is not represented, to question the prosecution witnesses
during cross examination.
• To produce his witnesses in front of the Panel of Inquiry to defend
himself.
• To make his submission at the close of the inquiry as his final
defense.
It is to be noted that should the alleged employee be absent or fail to
attend the domestic Inquiry after being duly informed, without any
reasonable excuse, the inquiry may proceed without him. Such an
inquiry is allowable and referred to as ex-parte inquiry.

DOMESTIC INQUIRY SKETCH PLAN
J2 J1 J3
WS
PO U1 D
J1/J2/J3 – PANEL OF
JUDGES
J1 – CHAIRMAN
W – WITNESS
D – DEFENDANT
U1 – UNION REP /
COLLEAGUE
PO – PROSECUTING
OFFICER
S - SECRETARY

Practical Approach In Handling Domestic Inquiry

It is unfortunate that there are no set rules to show a
uniform procedure for all Presiding Officers at a Domestic
Inquiry to follow. Certain guidelines as follows are useful to
observe:
 The Inquiry is to be instituted as early as possible after
suspension on the complainant
 The Complainant is to be given particulars of the
misconduct, preferably in writing; and a reasonable
time be given before the Inquiry to enable him to prepare
his case
 Wherever applicable the Complainant is to be
accompanied by his Union or Committee
representative if any at the inquiry

 The Inquiry is to be conducted as far as possible by such
Officer(s) as not directly connected with the investigation of
the misconduct so as to give the hearing impartiality
 Examination of relevant witnesses is to be allowed at a
reasonable discretion of the officer in charge of the Inquiry
 Notes in the form Questions & Answers and the final
decision are to be recorded to show that the inquiry was
proper and the decision arrived at was fair.

The Complaint
Complaint of a contravention of a rule/rules or
non compliance of a requirement in the company
The source of the complaint:-
a) Immediate superior
b) Colleague
c) Public (e.g. a bank teller was discourteous to a
customer)

PRELIMINARY INVESTIGATION
Investigation (Criminal or Civil Cases)
The investigation should be along these lines:
 Interview the complainant if there is one and record his
statement. If, however the complaint is made via a flying
letter then the original must be preserved whilst copies
may be made for the investigators to act upon.
 Interview other staff who may be involved in the incident
e.g. if a complaint is received that a fight took place
among staff, all those involved in the fight as well as
witnesses should be interviewed
 Interview also the workman against whom the complaint
is made and record explanation which he may give
voluntarily
 No inducement threat or promise of material benefits
should be made as confession obtained under duress will
not be accepted as evidence

 Should contain a statement calling upon the
workman against whom the allegation(s) is/are
made to submit his explanation in writing within a
specific date (three to ten days ought to be
sufficient considering the severity of the
allegation(s) and the circumstances
 Should state where necessary that the workman
against whom the allegation(s) is/are made is
suspended pending an inquiry (and the period of
such suspension)

Investigation is only done when there is a
need/reason for investigation. Generally,
investigation is only required when there is a
major offence or misconduct being reported
When a Supervisor or Manager receives a
complaint of a major breach of discipline he
should document it and ensure that all
relevant information is included in the report

 Purpose – to establish whether or not there is a
prima facie case for action
 To be carried out as soon as possible
 Appoint an officer to do the investigation
 Nature of complaint
 Interview complainant and record statement
details of time/place/names of witness
 Interview others involved or having knowledge
of complaint

 Individual statement to be taken
 To be thorough and unbiased
 I.O should ensure there are sufficient info
 Essential evidence should not be left out
 No threats, inducement or promises
 Report findings to the HR Department

THE INVESTIGATION REPORT
BEFORE THE D.I.
 All relevant facts are to be obtained
 Identity of all witness
 All documentary evidence
 Relevant exhibits are available
 Signed statements of witnesses
 The accused’s explanation, if any
 Mitigating circumstances
 Map, location drawing – enhance clarity
 Recommended charges (optional)

LETTER OF ALLEGATION
 The accused (i.e. the suspect or alleged wrong-doer)
person must be informed, preferable in writing of the
full details of the allegation made him
Letter of Allegation / Show-Cause
 After receiving the advise from the head of the
department concerned, the Head of HR or his/her
authorized representative will issue a letter of
allegation against the workman concerned calling for an
explanation as to why disciplinary action should not be
taken against him/her. Full details of the offence(s)
alleged to have been committed must be provided

LETTER OF ALLEGATION – its contents
 Be specific
 Be clear and unambiguous
 Be precise and accurate
 State date and time
 Specify the place and location of the alleged offence
 Cite the relevant sections/clauses which has been breached
 Be easily understood
 Based on the facts of the case
 State suspension period, if needed

THE CHARGE
The allegation is equivalent to the charge in criminal prosecutions. It
must be strictly factual.
Example:
That you (name) on (date or dates) between (time) and (time) received
illegal gratification in the form of cash and hampers from six Hire-
Purchase Agents, thereby infringing regulation 604(m) of the Officer’s
Handbook

SERVICE OF THE LETTER OF ALLEGATION
The letter containing details of the allegation(s) must be
served on the accused.
Serving of the letter of the allegation by one of the
Company’s employees is sufficient. The workman
concerned must be made to acknowledge the serving
If the workman is not in the Company’s premises or if
he is absent, the letter of allegation should be sent by
AR Register to the last known address of the workman.

CONFESSION
In the course of the investigation, the company official
may be told by the suspect that he wishes to “confess”.
It is preferable that the suspect writes his confession in
his own words using his paper (and not the company’s
letterhead).

TIME-FRAME TO REPLY CHARGES
 Sufficient time must be given
 Less than one day – insufficient
 Two days to one week is considered sufficient
depending on facts & circumstances

TIME-FRAME TO REPLY CHARGES
In the case of Cheong Fatt Meng and Intechem Toyo
SEA (Award No 104 of 1977), the claimant was told at
8.30a.m. that he should attend an inquiry at 9.00a.m. (i.e.
half an hour later) on the same day.
Held: Claimant was not given a reasonable opportunity
or time to prepare his defense or state his case.(Perhaps
Company ought to consider a period of three days to a
week)

LETTER OF EXPLANATION FROM THE
WORKMAN
After receipt of the letter of allegation, the workman concern
may:
 Admit the charge(s) and ask for leniency; or
 Submit his/her explanation refuting the charge(s); or
 He may refuse/neglect to reply

EXPLANATION NOT ACCEPTABLE
If the explanation is not acceptable to the Company, a formal
inquiry should be held.
(Inquiry is mandatory where the offense alleged is of such
nature as to attract the punishment of dismissal/discharge)

For the purpose of inquiry under subsection (1), the
employer may suspend the employee from work for a period
not exceeding two weeks but shall pay him not less than half
his wages for such period:
Provided that if the inquiry does not disclose any misconduct
on the part of the employee the employer shall restore the full
of wages so withheld.
Section14(2), Employment Act 1955 (Act 265)
SUSPENSION – EMPLOYEE WITHIN
MEANING OF EMPLOYMENT ACT 1955

Can be suspended even if there is no such provision
in the employment contract but he shall be entitled
to full remuneration/wages during such period of
suspension.
Quoted by I.C. Award no 458/95 in MBF Finance Sdn
Bhd v Abdul Aziz B Hashim from OP Malhorta – Law
of Industrial Disputes 4th edn p.821
SUSPENSION – EMPLOYEE NOT WITHIN
MEANING OF EMPLOYMENT ACT 1955

To facilitate investigation
To prevent tampering of evidence, documentary and /or
witness
To prevent commission of further offences e.g. if two
employees are charged with fighting, suspension would
prevent a recurrence of the fight
To enable the employee concerned to prepare his defense
To prevent any possible act of sabotage
THE PURPOSE OF SUSPENSION

Suspension of a workman charged with
misconduct until the conclusion of the domestic
inquiry is an interim measure which the employer
is entitled to take
Such suspension is not a punishment
Dreamland/Chong Chin Sooi
S.C.(1988)1 MLJ PG111-115

If the disciplinary inquiry cannot be completed
within two weeks from the date of the suspension for
good reasons, the workman concerned shall not be
required to report for duty until the completion of
the disciplinary inquiry
In such a case, the workman should further be
suspended with full pay until such time the inquiry is
completed and appropriate decision is made or
punishment awarded
SUSPENSION

On receipt or failure of receipt of the letter of
explanation from the accused workman, the
company may commence to frame proper charge(s)
against the accused and shall issue a notice of
inquiry
NOTICE OF INQUIRY

The panel of Inquiry shall be nominated by the Head
of HR or Managing Director in consultation with the
divisional or the department heads concerned.
The members must be properly selected in that they
should posses some caliber and command respect at
the company
None should have been involved with the alleged
wrongdoer
THE PANEL OF INQUIRY

The Panel of Inquiry shall comprise of two or three
persons representing Personnel, the department of the
workman concerned and/or another from a neutral
department
The Chairman may generally be the representative from
Personnel or Industrial Relations
The Chairman shall be equal or superior in rank to the
other members of the Panel
Where appropriate the Head of Personnel may appoint any
person other than the representative of Personnel to be
the Chairman of the Panel

In the case between Oriental Bank Berhad and Zulkiflee B
Hassan, Kajang (Award No 316 of 1986) the learned
Chairman said:
This (the inquiry) appears to be like in inquisitorial
session. All the members of the Board (of Inquiry) put
questions to the claimant as they had previous knowledge
of the facts.
It cannot be disputed that Encik Muguet knew the facts
beforehand; so did Puan Faridah. Can we say that it was
fair or not or biased? I say it was biased

The Inquiry Officer or members of the Panel should never
be briefed before, during or even after the hearing of the
workman’s case(s)
The case between Malayan Tobacco Co Bhd and Chow
Yong Peng (Award no 87 of 1986) held that
“….justice was not seen to have been done as an element
of bias was created in that the Chairman had been briefed
by a witness who had knowledge of the alleged incident”
[1986] ILR518
A similar finding was arrived at the case between Lori
Malaysia Berhad and Transport Workers Union (Award No
69 of 1987)

DOMESTIC INQUIRY PROCEDURE
Preparation for the Presentation of the Case
Before the commencement of the Inquiry the Officer
representing the Company shall ensure that:
He/She prepared the case thoroughly
Sufficient facts are available
Company witness are properly briefed
All exhibits are available and
Copies made for the panel

THE HEARING - PARTIES
The Inquiry starts – at the place of inquiry
The Chairman:-
 Finds out all the parties are present
 Has the discretion to allow/disallow any person or limit
the number of witness
 Ensure that the witness are not present in the room
during the inquiry

THE HEARING - REPRESENTATIVES
If the accused person desires the assistance of a
co-worker or a fellow-workman or a colleague
(who may or may not be a Union/Association
official) at the inquiry, there should be no
objection.
(It was held in Securicor (M) Sdn Bhd’s case
(1986) 1 ILR 357 that the inquiry was not
properly conducted because the claimant was
denied the opportunity of being represented by a
personnel from Union Headquarters)

THE HEARING - REPRESENTATIVES
Persons who are not employees of the Company
and lawyers are not allowed to attend unless
they are Union Representatives from the Union
Headquarters
Other employees not involved in the matter
should be kept out except that the accused may
bring his union representative or colleague to
speak for him and assist in the inquiry

THE HEARING – Ex-Parte INQUIRY
If the workman/employee who is the subject of
the inquiry (i.e. the accused) is absent with no
explanation offered and the Panel of Inquiry is
satisfied that the letter of allegation(s) has been
served, the case may be heard (ex-parte) in his
absence

WHAT IS THE MEANING OF Ex-Parte
ex parte means a legal proceeding brought by
one person in the absence of and without
representation or notification of other parties.

THE HEARING – PLEADING
If the workman/employee who is the subject of
the inquiry (i.e. the accused) is present, the
allegation(s) or charge(s) should be read and
explained to him in ordinary language by the
inquiry panel
He/she should then be asked what his plea is to
each of the charges, i.e. whether he admits the
charge(s) or otherwise

THE HEARING – ADMITTING THE
CHARGE – FOR MITIGATION
If the workman/employee admit the charges he
should be granted an opportunity to express the
circumstances that led him to commit the
offence and to say what he wishes, including any
plea for mitigation

CHARGE
In Said Dharmalingam Bin Abdullah v Malayan
Breweries (Malaya) Sdn Bhd the Federal Court
held that:-
Where an employee was denied the opportunity
to make a plea in mitigation before sentencing
by a domestic body, this amounted to a partial
denial of the employee’s right to due inquiry
under S.14 of the Employment Act 1955

CHARGE
Prosecuting Officer who is presenting the
Company case shall then be asked to give
briefly the facts of case, including how
the misconduct was committed to enable
the panel to decide appropriate
punishment

THE HEARING – DENYING THE
CHARGE
If the workman/employee does not admit
the charge, the Chairman will then ask
the Prosecuting Officer who is presenting
the Company case to adduce evidence to
prove the charge levied against the
accused worker.

THE HEARING – EXAMINATION –IN-
CHIEF
The Prosecuting Officer will then call
witness who can support the company’s
case to be examined and give evidence.
Company witnesses should be called first.

CHIEF
A witness may either be asked to relate
what he knows about the case or he may
give evidence in answer to questions put
to him.
This is the examination of a witness(s) by
the party who calls him/them. This, in
legal language is the examination-in-chief

CHIEF
While under examination, witness may
refresh his memory by referring to any
writing made by himself/herself or
document with the permission of the
panel

CHIEF
While under examination, Prosecuting
Officer may tender documentary
evidence through the witness and the
documentary referred must be produced
and shown to the other party.

CHIEF
All evidence must be in the presence of
the accused worker (and he/she must be
able to hear all witnesses and examine
documents/exhibits).

THE HEARING – CROSS-EXAMINATION
The accused worker should have the right
to produce witnesses and documents and
to cross-examine witnesses produced by
Company

THE HEARING – CROSS-EXAMINATION
After a witness has given evidence for the company, the
workman who is subject of the inquiry will be allowed to
cross-examine him, if he wishes. This is the examination
of a witness(s) by the adverse party.
When a witness is being cross-examined he may, in
addition to the questions herein-before referred to, be
asked any question which tend:
 To test his/her accuracy, veracity or credibility
 To discover who she/he is and what is his/her position
in life; or
 To shake his/her credit by injuring his/her character,
although the answer to such questions might tend
directly or indirectly to criminate him/her or might
expose or tend directly or indirectly to expose him/her
to a penalty.

THE HEARING – RE-EXAMINATION
After the cross-examination of the
witness by the accused or his/her
representative, Prosecuting Officer may
re-examine the witness
In this process the witness will be asked
by the prosecuting officer to clarify
whatever questions that being raised
during cross-examination.

THE HEARING – QUESTION BY PANEL
MEMBER
After the re-examination of the witness by the
Prosecuting Officer, members of the Panel may
question the witness to clear ambiguities or to
clarify any doubt and he may not ask
incriminating questions.
The questions to be asked should be phrased in
such a manner as not to constitute cross-
examination

THE HEARING – CASE FOR THE COMPANY
After the Prosecuting Officer has called
all his/her witnesses and produced all
evidence, he shall then close the case for
the Company

THE HEARING – Defense to the charge by the
Accused Worker
After the Prosecuting Officer has closed
the case for the Company, the Panel is of
the opinion that Company has made out
its case, then the accused shall then be
asked to enter his defense

THE HEARING – The Accused Evidence
The accused and his/her witnesses through a
similar process will give their evidence through
examination-in-chief by his/her representative,
cross-examination by the Prosecuting Officer,
re-examination by the accused representative
and question by the members of the panel

THE HEARING – Case For the Accused
After the accused representative or accused has
called all his witnesses and produced all evidence
he/she shall then close the case for the accused

THE HEARING – SUBMISSION
At the end of the hearing both the
prosecuting officer or the accused may be
asked to give their submission either
orally or in writing.
Accused should make the submission first
followed by the Company.

THE HEARING – FINDINGS
At the conclusion of the inquiry, the panel
may adjourn to deliberate whether the
charge(s) leveled against the workman is/are
proven or not based on the evidence
obtained.
It is essential that the Members of the Panel
be convinced of the guilt of the accused. The
finding can be done on the same day or the
following day.

THE HEARING – FINDINGS
The finding must be recorded as part of the
notes of inquiry.
In the case of Standard Chartered v Cliff a/l
James I.C. Award 364/91 the court held that
absence of findings will invalidate the
inquiry.

ROHANA BT ARIFFIN v UNI.SAINS MALAYSIA
(1998) 1MLJ 487S.C
 The rule requiring reason to be given in
support of an order is like the principle of
Audi Alteram Partem, a basic of Natural
Justice
 The claimant is entitled to succeed on
this ground since neither the disciplinary
authority nor the University Council gave
any reason for the decision

THE HEARING - MITIGATION
The panel shall thereafter announce its
finding to the workman in person.
If the charge is proven, the workman shall be
asked if he wishes to make any plea in
mitigation
The plea shall be recorded

THE HEARING – RECORDING OF THE PROCCEDINGS
The evidence adduced and statements made by
the witnesses and the workman during
examination-in-chief, cross-examination, re-
examination and questions by members of the
panel shall be recorded in sequence.
The notes should be in the form of narrative
though the chairman may take down any
particular question and answer
Alternatively the notes shall be in the form of
questions and answers. Where possible, notes
should be verbatim.

VERBATIM
What is the meaning?
In exactly the same words: word for word

NOTES OF INQUIRY
Notes of Inquiry into the charge against Mr.Y
held at (Place) on (Date) (Time)
The Charge:
Inquiry Panel
Chairman – Mr.A
Panel Member – Mr.B
Panel Member – Mr.C
Secretary – Miss D

NOTES OF INQUIRY
Parties Present
Prosecuting Officer – Mr.E
Company Witness No.1 – Mr.F
Company Witness No.2 – Mr.G
Workman/Employee – Mr.Y
Union Representative – Mr.H
Workman Witness No.1 – Mr.J
Workman Witness No.2 – Mr.K

NOTES OF INQUIRY
Reading of the Charge
The charge was read by the Chairman to Mr.Y,
Mr.Y did not admit the charge
Both parties were ready for the inquiry.
All the witnesses were send out from the
inquiring room

NOTES OF INQUIRY
Company Witness No. 1 Mr.F was X’d in Chief by
PO
Question: Did Mr.Y punch you on 10 April 2007
Answer: Yes, he did.

NOTES OF INQUIRY
Company Witness No. 1 Mr.F was XX’d by Union
Representative
Question: Did you scold Mr.Y before he punched
you on 10 April 2007
Answer: Yes, he did.

NOTES OF INQUIRY
Company Witness No. 1 Mr.F was Rex’d by PO
Question: Why did you scold Mr.Y
Answer: I scolded him because he refused to
carry the job that I had instructed.

NOTES OF INQUIRY
Company Witness No. 1 Mr.F was Questioned By
Panel
Question: On what authority that you had
instructed Mr.Y to carry out the job
Answer: I am Mr.Y Supervisor.

NOTES OF INQUIRY
Closing of Company Case
The Prosecuting Officer has closed his case after
calling all the witnesses

ENTER DEFENSE
After the company’s case, the panel
will decide whether the accused has
a case to answer

NOTICE OF INQUIRY
Workman Mr.Y was X’d in Chief by Union
Representative
Question: Before you punched Mr.F, what
word did he use, when he
scolded you?
Answer: He used bad words

NOTICE OF INQUIRY
Workman Mr.Y was Xx’d by PO
Question: I put it to you that you are
lying, Mr.F only used the word
that you are lazy.
Answer: I did agree

NOTICE OF INQUIRY
Workman Mr.Y was Rex’d by Union
Representative
Question: What was the actual words used
by Mr.F
Answer: He said ‘malas punya orang”

NOTICE OF INQUIRY
Workman Mr.Y Questioned by Panel
Question: In what manner did Mr.F scold
you?
Answer: He scolded me in anger.

NOTICE OF INQUIRY
Closing of accused Case
The Accused has closed his case after
calling all the witnesses.

NOTICE OF INQUIRY
Submission By the Accused
.....................
Submission by the Company
………………..

NOTICE OF INQUIRY
Findings
.....................
Plea of Mitigation (if any)
………………..
Recommendations
………………..

NOTICE OF INQUIRY
 Verbatim report is advised
demeanor of witness e.g. witness is evasive,
witness hesitates before answering etc. The
notes can be used at the end in deciding which
witness is more reliable
 Short hand notes must be preserved together
with the typed transcripts
 The company need not give a copy to the
employee to record his own notes

FRESH NOTES OF INQUIRY
Once the inquiry is completed, it cannot be re-
opened to admit fresh evidence unless:-
Such evidence could not be reasonable
diligence have been obtained at the time of
inquiry; and
That the evidence is material and entirely
changes the outcome of the case.

Supreme Court (1991) 1CLJ43
Shamsiah bt Ahmad Shah v PSC
Tribunal must not continue privately to
obtain other information before the
conclusion of the hearing and the making of
the decision, without notifying the parties so
as to give them an opportunity to make
submission on it.

THE HEARING CASE LAWS
Wong Swee Chin/PP (1981)
It has been established by court that
failure by an accuse to challenge the
testimony of a witness is tantamount to
accept the truth of that statement and
admission of the fact stated therein

CONFLICTING EVIDENCE
What does that means?

STANDARD OF PROOF
What does that means?

The report of the Panel of Inquiry shall
contain information as to whether the
decision of the Panel is unanimous or
split
THE HEARING REPORT

Report of the Inquiry Officer/Panel
What is important here?
THE HEARING REPORT

The Disciplining Authority decides on
the punishment.
On receipt of the Report of the Inquiry
Officer the Disciplining Authority
considers the evidence anew
He may have to pit the incidents against
the backdrop of the company policies
circumstances and the laws
THE HEARING – PUNISHMENT ORDERS

Importance of Panel Findings?
Let’s discuss
What are the punishments can be
imposed by the Company (HR)?
FINDINGS AND PUNISHMENT

1. Claim for Reinstatement – IRA 1967
2. Set aside decision of D.I. (EA 1955)
REMEDIES

THE STAGES INVOLVED DURING THE
PROCESS OF A DOMESTIC INQUIRY

STAGE 1 - COMMENCEMENT
 STEP 1 - The Chairman of the panel inquiry officer calls the
inquiry to order at the appointed time.
Example
 STEP 2 – He then introduce & identifies everyone present in
the room.
 The Chairman might not know everyone present, he/she
may request them to introduced themselves.
Example
 STEP 3 – The Chairman ensures that the accused has
received the charges.
Example

Continue COMMENCEMENT
 STEP 4 - Determine the language to be used during the
inquiry
Example
 STEP 5 - The Chairman outlines the procedures to be
followed including times for break etc
Example
 STEP 6 – The Chairman determines the witness for both
side and ensures that they leave the room before the
hearing.
Example
 STEP 7 – Decides on any issues raised by either party
Example

Stage 2 – Reading the charge(s)
The charge(s) is read and explained to the accused employee
and is asked to make his/her plea i.e. either guilty or not
guilty to the charge(s)
Important: Ensure that the employee understand the
charge(s) before he makes a plea.

STEP 1 - Recommended the following questions to be asked:
1. Have you received the charge(s)?
a) Respondent says “NO”
The panel members may have to determine whether the charge
was sent to him. If not, then the DI may have to be postponed.
b) Respondent says “Yes”
2. Do you understand the charge(s) against you?
a) Respondent answers “Yes” – he/she can be asked to make
his/her plea
b) If he/she answers ‘NO”
Then the charge would have to be explained to him/her
If he persistently states that he does not understand the charge, the panel
members can inform him that since he does not understand, a plea of "not
guilty" would be recorded, so that he could hear the evidence against him and
subsequently understand the charge

Continue
If there are two or more employees facing charges
for the same offence, each employee should be
individually questioned to ensure that each one
understands the charge(s)

STEP 2
 The inquiry panel/officer should ascertain that the plea is
unequivocal i.e. without any conditions and that he
understands the consequences of his plea
 The Presenting Officer should then be asked to give the
facts of the case. It is very important that the Presenting
Officer presents the facts of the case because until this
stage the panel members have only seen the charge and do
not know the facts relating to the offence. The panel
members must know the facts to enable them to make any
proper recommendation. Further, the employee who has
pleaded guilty should also be aware of the facts in the
possession of the company to ensure that his plea is
consistent with the facts

STEP 2 – Continue
 The Presenting Officer should then be asked to give the
facts of the case. It is very important that the Presenting
Officer presents the facts of the case because until this
stage the panel members have only seen the charge and do
not know the facts relating to the offence. The panel
members must know the facts to enable them to make any
proper recommendation. Further, the employee who has
pleaded guilty should also be aware of the facts in the
possession of the company to ensure that his plea is
consistent with the facts.
 The accused employee should understand and admit the
facts. If he does not admit the facts then his plea of guilty
should not be accepted
 If he admits the facts, he should be asked to mitigate

STEP 2 – Continue
 The inquiry panel/officer should then proceed to make their
findings and recommendations
 The company can then impose the punishment deemed fit

STEP 3
What happens - If the accused employee pleads not
guilty?
 The Presenting Officer then calls the company's first
witness
 Evidence from witnesses should be adduced in the following
manner
 The witness is first examined (questioned) by the Presenting
Officer
 He is then cross-examined (questioned closely) by the
accused employee
 He may then be re-examined (questioned again) by the
Presenting Office
 He may finally be also examined by the inquiry panel/office
 The same procedure is repeated for all the company's
witnesses
 When all the company's witnesses have testified, the
accused employee can be asked to make his defense

STEP 4
What happens - If the accused is not represented by union
officials then the following procedure should be adopted?
 The accused is allowed to give his evidence (may be guided
by the inquiry panel/officer)
 He is then cross-examined by the Presenting Officer
 He may be given a chance to clarify certain issues (Re-
examine)
 He may be then examined by the inquiry panel/officer

STEP 5
What happens -If the accused is represented by a union
official or fellow employee
 He is examined by the union official
 He is then cross-examined by the Presenting Officer
 He may then be re-examined by the union official and may
also be examined by the inquiry panel/officer

STEP 6
The accused employee should then be allowed to call his
witnesses who will testify in the following manner:
 Examined by accused or his union official
 Cross-examined by the Presenting Officer
 Re-examined by the accused or union official
 Examined by the inquiry panel/officer

The following scenario could happen on the
day of the Domestic Inquiry
Question: What would you do?
1. The Employee is absent
2. The Employee submits a sick leave certificate
3. The employee ask for a postponement

ANSWERS
Question 1
Ensure that the notice of Domestic Inquiry has
been sent out
Postponed the inquiry to another date
Inform the employee that the DI will continue on
the postponed date even if he/she is absent

ANSWERS
Question 2
Postpone the inquiry
Write to him/her that he/she should be present on
the postponed date unless he/she is seriously ill

ANSWERS
Question 3
Obtain reason(s) – if reasonable grant the
postponement

PRESENTATION STAGE OF DOCUMENTS
AND
OTHER EXHIBITS
If there are documents and other exhibits to be
tendered during the inquiry, it must be remembered
that they should be presented through the witness
who is giving evidence relating to that exhibit

SUBMISSION STAGE
When all the witnesses have testified, both the
accused and the Presenting Officer may be asked to
give their submissions (if necessary).
The purpose of submissions is to enable both sides
to highlight the facts of the case which appear to be
in their favor.
Usually submissions are only required where the
facts adduced (cited as proof or evidence) are
complex and lengthy.

DECISION STAGE
It is not necessary for the panel members to make a
decision immediately. They have the right to take
reasonable time to discuss, weigh and analyze the
evidence adduced during the inquiry before making
a decision. However, they should not unduly
(excessively) delay making a decision.
They should, however, inform both sides that they
will hand over their decision within a specified
period to the management which will in turn relay
the decision to the accused.

NOTES - IMPORTANT
In coming to a decision, the inquiry panel is not required to
make a finding "beyond reasonable doubt" but rather on a
"balance of probability (standard of proof required for the
most likely version of events is true)“
Recording of the Domestic Inquiry - The notes / minutes of the
Domestic Inquiry should be recorded verbatim (word for
word). A recording device may be used to record the whole
proceeding simultaneously with the hand written notes to
ensure accuracy.

ASKING POWERFUL QUESTION
A Powerful question:
 Is thought provoking and invites reflection and finding deeper meaning
 Expands possibilities or focuses attention
 Brings underlying assumptions to light
 Stimulates curiosity and creativity
 Can help a group move forward

Less powerful
questions
More powerful
questions
Yes/No Which Who When Where What How Why What if

Now consider the construction of the following questions:
 Are victims in our community getting the services they need?
 What is it about our community that supports healthy
relationships for all of its citizens?
 How can we prevent sexual and domestic violence from occurring
in the first place?
 Why* is it that so many families in that area of town experience
violence?
 What if we got it right? (Creating a community that supports non-
violence and healthy relationships.)
As you move from simple yes/no questions to why to what if, the
question stimulates more reflective thinking and more creative
responses.

PANEL PIHAK BERKUASA TATATERTIB
Appointing of the Panel Piha kBerkuasa Tatatertib
 Those appointed as DI Panel cannot be appointed as Panel
Tatatertib
 Role of Panel Tatatertib – to determine type of
Punishment to be meted out to the Accused
 Refer to “Peraturan dan Prosedur Tatatertib “
 IR Unit will provide “Laporan Pihak berkuasa Tatatertib” to
the Panel – outlining the charge(s) and decision taken by
Panel Siasatan Dalaman

PANEL PIHAK BERKUASA TATATERTIB
 Types of punishment :
a) Written warning
b) Suspension without pay up to 14 days
c) Defer yearly increment
d) Suspend yearly increment
e) Reduce salary – maximum of 3 times increment
f) Demotion
g) Terminate employment
h) Any other punishment deemed appropriate

If you are not sure ask
someone………
GOLDEN RULE

Practical Approach In Handling Domestic Inquiry

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