Handling domestic inquiries in Malaysia can seem complex, but understanding the basics can make the process smoother.
Domestic inquiries are important for maintaining workplace discipline and ensuring fairness when dealing with employee misconduct. There are specific procedures and regulations that guide these inquiries in Malaysia to ensure they are conducted properly.
Whether you are an employer or an employee, knowing how to handle domestic inquiries can help protect your rights and ensure a fair and just working environment.
What is the meaning of domestic inquiry?
A domestic inquiry is a legal process used by employers to investigate alleged misconduct or violations of company policies by employees. This process is important as it provides the accused employee with an opportunity to defend themselves against the allegations. The goal is to ensure that any action taken on them is fair and reasonable.
In simpler terms, a domestic inquiry is an internal investigation conducted by an employer to determine if an employee has committed an act of misconduct that breaches the terms of their employment.
Misconduct isn't specifically defined under the Employment Act 1955, but it generally refers to behaviour that goes against the agreed conditions of employment. Even though Malaysian law doesn't provide exact guidelines on conducting a domestic inquiry, the process is inspired by previous court cases to make sure it's fair.
According to Section 14(1) of the Employment Act 1955, a proper investigation, called a "due inquiry" must be done to decide if there is a good reason to discipline an employee.
The Industrial Relations Act 1967, especially Section 20(1), lets an employee who thinks they were unfairly fired ask to get their job back through the Malaysian Ministry of Human Resources.
Because of this, employers need to do a domestic inquiry to show they have a good reason to fire the employee in the first place and make sure their actions follow Malaysian law.
If employers fail to follow proper procedures or cannot bring forward a justified cause for action, employees may have legal grounds to challenge the action and claim unfair dismissal.
This highlights the importance of internal investigations and due inquiries in maintaining workplace fairness and protecting the rights of both employers and employees during a domestic inquiry hearing.
Employee misconduct
The law in Malaysia doesn't clearly define what counts as "misconduct" by employees. However, Section 14(1) of the Employment Act 1955 says that misconduct can be a reason for firing an employee if their actions go against the rules of their job after a proper investigation or due inquiry has been done.
Misconduct can include many different behaviours that break company policies and harm the employer's business, reputation, or property.
Examples of minor misconduct include being absent without notice, arriving late, or misusing company property while major misconduct includes serious issues like violence, sexual harassment, bribery, or fraud. Both minor and major misconduct can lead to disciplinary action.
The law tends to protect employees' rights, so employers must justify any disciplinary actions and follow the due inquiry process. A due inquiry ensures that any actions taken against an employee are fair and properly justified.
What is the purpose of domestic inquiry?
The main purpose of a domestic inquiry is to ensure that any action taken against an employee is fair and justified. When an employee is accused of misconduct, it's important to have a proper process in place to investigate the situation properly.
A domestic inquiry provides a formal setting where both the employer and the employee can present their sides of the story. For the employee, the domestic inquiry offers an opportunity to explain their actions, present evidence, and call witnesses to support their case.
This helps to ensure that the employee is treated fairly and that their rights are protected. It's an essential part of making sure that any accusations of misconduct are properly investigated and that the employee is given a fair chance to defend themselves.
For the employer, the domestic inquiry is a way to gather all the facts and make an informed decision. It helps to make sure that any disciplinary action taken is based on clear evidence and not just assumptions or incomplete information.
This process helps maintain fairness and transparency in the workplace, which is important for maintaining trust and morale among all employees. On top of that, domestic inquiry helps to protect the company’s interests.
By carefully investigating allegations of misconduct, the company can take appropriate action to prevent further issues and maintain a positive working environment. This can include anything from additional training and support for employees to more serious actions like suspension or termination.
With that, the purpose of a domestic inquiry is to ensure that the handling of employee misconduct is done in a fair, transparent, and a justified manner. It is to protect the rights of the employee while also upholding the integrity of the workplace.
How to conduct a domestic inquiry in Malaysia?
The domestic investigation process in Malaysia is a systematic approach used by employers to investigate allegations of employee misconduct. The steps that are typically involved in the process are
Show cause letter
The process starts with the issuance of a show cause letter to the employee. This letter outlines the specifics of the alleged misconduct, including details like the date, time, place, and the exact nature of the rule or policy that was violated.
The employee is given sufficient time to respond in writing, explaining why disciplinary action should not be taken against them.
Formation of the inquiry panel A fair and unbiased group of people is formed to oversee the investigation. The panel typically consists of: - A chairman who is not involved in the case to ensure fairness - Two independent members from other departments within the company/organisation to avoid any bias - A prosecutor (usually from the HR department) who presents the case against the employee
Suspension during inquiry While the inquiry is ongoing, the employee may be suspended from work for up to two weeks. During this suspension, the employee must be paid at least half of their wages.
If the inquiry finds no misconduct, withheld wages withheld from the employee must be fully restored.
Conducting the hearing The hearing is the highlight of the domestic inquiry process. It begins with the prosecutor (HR department) presenting the case, including calling witnesses who have direct knowledge of the incident.
These witnesses can be cross-examined by the employee. After the prosecution, the employee presents their defense, including any witnesses or evidence to support their case. The employee’s witnesses can also be cross-examined by the prosecution.
Documentation of proceedings The entire inquiry should be documented. This can be done through detailed written records or even audio-visual recordings. Accurate documentation ensures that all testimonies and pieces of evidence are preserved and can be reviewed later if needed.
Decision making After all evidence and testimonies have been presented, the inquiry panel reflects on the findings. The panel's conclusions and recommendations are then submitted to the company’s management.
Based on these recommendations, management makes a final decision, which can result in:
- Dismissal of the employee with/without notice
- Downgrading the employee’s position
- Imposing lesser punishments, such as a suspension without pay for a period not exceeding two weeks
Right to Appeal If the employee disagrees with the decision, they have the right to appeal. Let’s say the case escalates to the Industrial Court, the court will examine whether the inquiry process was conducted fairly and reasonably.
Conclusion
Handling domestic inquiries in Malaysia can seem complex, but with a clear understanding of the process, it becomes more manageable. These inquiries are important in maintaining workplace discipline and ensuring fairness when addressing employee misconduct.
By following proper procedures and regulations, employers and employees can protect their rights and ensure a fair and just working environment. Domestic inquiries provide a fair chance for the accused employee to defend themselves, ensuring that any disciplinary action taken is justified and reasonable.
Employers, on the other hand, need to follow a systematic approach to domestic investigations. These steps help maintain transparency and fairness, protecting both the employee's and the employer's interests.
Navigating the complexities of domestic inquiries can be challenging, but you don't have to do it alone. At Douglas Loh, we provide specialised advisory services. Our experienced professionals are here to ensure your company's disciplinary processes are fair, transparent, and compliant with Malaysian law.
Let us assist you in managing domestic inquiries effectively, protecting your company's interests and employees' rights. Contact Douglas Loh today to learn how our tailored services can support your business in handling domestic inquiries and beyond.
FAQ
1. What are some sample domestic inquiry questions?
When conducting a domestic inquiry, it’s important to ask clear and relevant questions to understand the situation thoroughly. Here are some sample questions that might be used during a domestic inquiry for the accused employee, the witnesses and prosecution;
For the accused employee:
What is your explanation for the alleged misconduct?
Do you have any evidence or witnesses to support your side?
Were you aware of the company policies related to this issue?
For witnesses:
What did you observe regarding the incident?
How does your testimony relate to the allegations?
Do you have any supporting documents or evidence?
For the prosecution (typically HR representative):
What evidence supports the claim of misconduct?
How does this evidence relate to company policies?
What impact did the alleged misconduct have on the company?
2. Does the employer need to send a termination letter after domestic inquiry?
Yes, an employer should send a termination letter after a domestic inquiry if the decision is to terminate the employee. The termination letter serves as formal documentation of the decision and provides the employee with clear information about the termination.
3. What is a sample of domestic inquiry letter?
A domestic inquiry letter is a formal letter, hence be written in a formal format. Here is an example of what the letter can look like:
4. What role does the HR department play in a domestic inquiry?
The HR department typically plays a key role in initiating and overseeing the domestic inquiry process. They may act as the prosecutor during the hearing, presenting the case against the employee, and ensuring that the process follows legal and company guidelines.
5. How should a domestic inquiry be documented?
The domestic inquiry should be thoroughly documented, including written records of all proceedings, testimonies, and evidence presented. Some companies may also choose to record the inquiry using audio or video to ensure accuracy and transparency.
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