The Effect of Vague Charges in a Domestic Inquiry

The Effect of Vague Charges in a Domestic Inquiry

A domestic inquiry is a proceeding held by an employer to determine whether or not an employee is guilty of the charges levelled against him.

The domestic inquiry provides an accused employee with an opportunity to defend himself against specific charges. Key issues which need to be carefully managed by employers are:

• the conduct of an investigation or the fact-finding exercise;
• the drafting of charges; and
• the appointment of officers in the domestic inquiry.

Once an investigation has been conducted and evidence gathered, charges may be drafted and issued to the accused employee. It is clear that the employer cannot justify his action on any ground other than those contained in the charge sheet and/or stated in the letter of termination. A charge should normally include:

• the specific nature of the offence or misconduct of which the

employee is accused;

• the date and time when the misconduct was committed; and
• the location where the misconduct took place.

It is also pertinent to note that a charge should not include any extraneous statements which may be intended to make the charge appear serious but which cannot be proven. For instance, if a charge stated that, as a result of certain actions allegedly committed by an employee, the employer suffered monetary losses, the employer must be able to prove that the monies were not earned as a direct result of the misconduct of the employee.

The importance of careful drafting cannot be overemphasized as the Industrial Court is highly likely to strike down any dismissal based on poorly drafted charges. The purpose of any ensuing domestic inquiry is negated when an employee is unable to properly prepare his defense as a result of a defective charge. In the case of Rama Krisna Balan v Digi Telecommunications Sdn Bhd, the employee was dismissed after being found guilty of harboring the intention to deceive the company by asking two of his colleagues to clock-in for him and deceiving the company by clocking-in his attendance card before the start of his shift hour. The Industrial Court found the charge defective for want of material particulars, specifically the names of the two colleagues.

In the recent case of Soo Kwok Wah v F & N Beverages Manufacturing Sdn Bhd, the employee was dismissed by the company after being found guilty of gross negligence in managing the company’s products resulting in ullages of the same as well as proceeding to dispose ullages of the company’s products despite instructions from his superiors to the contrary.

In respect of the gross negligence in managing the company’s products, the Industrial Court said:

“… of utmost importance in my view is the company’s failure to particularize in the 3 charges according to the type of ullages which the claimant is alleged to have failed to effectively manage, since the alleged ullages were made up of 3 types of ullages viz-a-viz market returns, secondary corrosion and excess stocks. By not specifically particularizing the type of ullages, it has indeed clearly prejudiced the claimant because that would mean that he is liable for all types of company’s product which are rendered ullages including ullages resulting from market returns or through corrosions of cans, which by right he should not be held liable.”

As for disposing ullages of the company’s products, the Industrial Court stated that there is a need to specify what were the alleged instructions from the claimant’s superiors, who were his superiors and when were the alleged instructions given to the claimant so as to enable the claimant to defend himself effectively. The Industrial Court quoted the cases of Esso Production (Malaysia) Inc v Maimunah Ahmad & Anor and Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor which found that if the charges were lacking in material particulars, any decision of guilt made by the domestic inquiry panel was void and perverse.

The above cases stand for the proposition that where the charges are vague and the employee is unable to prepare his defense properly the domestic inquiry will not be in conformity with the rules of natural justice. It is worth noting however that the decision of the Court of Appeal in Esso Production (supra) is inconsistent with the decision in the case of Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal.

It was held in the Federal Court case of Wong Yuen Hock that a defective inquiry or failure to hold a domestic inquiry is not a fatality but only an irregularity curable by de novo proceedings before the Industrial Court.