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The Chairman’s role in a domestic inquiry is to chair the inquiry, and to make a decision of whether the accused is found guilty, together with the panel members, at the end of the inquiry.

The Chairman’s role / statement in chairing the inquiry are as follow:

The Chairman may start the inquiry with the following statement:

"The purpose of today’s inquiry is to allow the accused, in this case, <name>, an opportunity to state your case against the allegation leveled at you."

Thereafter, the Chairman shall proceed to introduce himself, the Panel Members, the Prosecutor (and perhaps, the Secretary).

The Chairman will then ask the accused whether he is accompanied by anyone for this hearing or will he be calling any witness (followed by answer).

The Prosecutor will then also be asked whether he will be calling any witness (followed by answer).

After that, the Chairman will lay out some ground rules for the inquiry, example are as follow:

• There will be no questions which are indecent or scandalous in nature.
• Any question intended to insult or which appear offensive shall not be allowed.
• Only relevant and material statements from witness are allowed.
• Exhibits and other documentary evidence which are relevant will be accepted.
• Only questions which are relevant to the charge are allowed by both parties.

After laid out the ground rules, the Chairman shall read the charge against the accused, as follow:

"The charge against you, <name of the accused>, that you <state the misconduct>. This allegation is very serious in nature and could lead to dismissal from employment. Do you, <name of the accused>, understand the charge and the consequences relating to this incident?" (followed by answer).

The Chairman will then asked the accused whether he plead guilty or otherwise. If the answer is not guilty, the Chairman will allow the Prosecutor to start the inquiry, which the Prosecutor will start by calling the 1st witness, and examine the 1st witness. After the 1st witness has given his statement, the Chairman will ask whether the accused have anything to cross-examine the 1st witness. After the accused cross-examined with the 1st witness, the Chairman will ask whether there is any other question from the Prosecutor or Panel Members. If there is no, the Chairman is to release the 1st witness. The same procedures will be applied on the subsequent witness (if any).

After all witnesses have given their statements, the Chairman shall proceed with the submission from both the accused and the Prosecutor respectively. Both Chairman and Panel Members may ask questions during the submission.

The Chairman will then conclude the hearing and make a decision whether the accused is found guilty together with the Panel Members.

Most employers do not know the proper ways of handling unconfirmed employees who performed below expectation. The under-performed unconfirmed employees will most probably be terminated at the end of their probation period, without going through the proper Performance Improvement Plan (PIP). This might put the company at risk in Industrial Relations (IR) proceeding.

It is therefore important to have a PIP, in order to assist an identified under-performed employee in improving his / her job performance or poor work habits in order to achieve the standards set for the position. The employers or managers must be made aware of their obligation to address poor performance by: 

• Identify and act on sub-standard performance as early as possible
• Provide a reasonable opportunity for the employee to improve
• Emphasize must be on helping the person to improve
• Provide on-going one-to-one performance counseling
• Focus on observed performance issues, not hearsay
• Focus on action plan for improvement with clear measurements

Meanwhile, the implications of continuing poor performance should be made clear to the employees, for example, downgrading, termination, etc.

Review meeting is a "must" process for PIP. There shall be at least three review meetings (hereinafter referred as "PIP meeting") to assist the under-performed employees to improve their performance.

Prior to the first PIP meeting, once the manager found his / her staff does not meet the job performance requirements, he / she shall have a review with the staff and subsequently require the staff to attend a meeting to discuss on PIP. A copy of the outcomes of the review process (pre-prepared by the manager) will be given to the employee for him / her to plan for the PIP meeting. Sufficient notice of at least 2 working days shall be given to the staff.

In the first PIP meeting, the following items must be fully discussed / clarified:

• PIP form
• Corrective action plan with due dates, measures and management support
• Additional on-the-job training, courses, reading, counseling, etc.

Once the above are discussed, a date for a follow-up meeting (second PIP meeting) shall be set to review the employee’s performance. The period between the meetings depends on the nature of the work performed, the period over which performance can be measured and the seriousness of the poor performance. It is recommended that the meetings shall be scheduled periodically within the probation period. The PIP form must be completed which a copy shall be given to the employee and the Human Resource Department respectively.

Regardless of whether the performance has improved, remained, or deteriorated, the follow-up meeting shall take place on the scheduled date. A form of Review of Progress against POP shall be completed a the outcome of this meeting. If performance has improved to an acceptable level, the review could be end there. If performance has not improved, the manager may indicate the possible outcome, including terminating the employment contract if the performance still does not improve by the next meeting. A letter to this effect shall be given to the staff, and all local regulations should be taken into consideration before issuing such letters. Thereafter, the next PIP meeting date shall be set. Again, the employee and the Human Resource Department shall be given a copy of the completed Review of Progress form.

The third PIP meeting, usually is the final PIP meeting. if the manager believes that the employee’s performance has not improved, a senior manager must chair the meeting. A member of the Human Resource Department may also be invited to attend. If the Chairperson finds that performance has improved to an acceptable level, this would mark an end to the review. Otherwise, a separate decision could be made.

Domestic Inquiry is an internal inquiry into some alleged misconduct by an employee. The main objectives of the domestic inquiry are to establish whether the employee is guilty on the allegation. The inquiry panel shall consist of chairman and panel members, who are:

• Similar or higher level than the accused.
• No personal involvement in such case.
• Should not have participated in the investigation of the matter.
• Could be an outsider engaged for a fee.
• Preferably not the HOD of the accused.

There must also be a prosecuting officer / investigating officer, who:

• Should not brief the panel members on the background of the accused.
• Should not inform the panel members the name of the accused and the chage(s) before the commencement of the inquiry.
• Should not influence the panel’s decision.

Before the inquiry, the ground rules shall be laid down:

• The inquiry shall be started with the company witnesses giving evidence.
• The accused are allowed to question the company witnesses.
• The accused and his witnesses will be allowed to be cross-examined by the prosecutor.
• Only relevant questions are allowed.
• Raised voice or vulgar words are not allowed.

The proper procedures of domestic inquiry are as follows:

• The chairman will introduce himself and the panel members sitting in the domestic inquiry.
• The chairman will then ask the accused whether he has any objection to any of the panel members.
• The chairman shall read the charge(s) to the accused.
• The chairman will ask the accused whether he understand the charge(s).
• The chairman will ask the accused whether he pleads guilty or not guilty.
• When the inquiry begins, the company witnesses are examined by prosecutor and / or cross-examined by the accused.
• Case for company over when all company witnesses have given their evidence.
• The accused will then give evidence, and cross-examined by prosecutor.
• Witness of accused to give evidence, and cross-examined by prosecutor.
• Case for accused over when the accused and his witnesses have given evidence.
• A case summary is given.
• Accused is allowed to have the last say.
• The chairman will ask the accused whether he has anything to say in his mitigation.

For decision making for a domestic inquiry, please refer to this link http://hrmanagement.blogsome.com/2007/11/03/domestic-inquiry-who-to-make-final-decision/.

Malaysian Employers are advisable to follow the following guidelines in managing layoff / retrenchment:

Cost Cutting Measures

If an employer wishes to downsize or reduce headcount, it is advisable to first implement cost appropriate cutting measures, as follow:

1. Limitation on recruitment of new employees, except for critical positions;
2. Limit overtime work;
3. Limit work on rest day and public holiday;
4. Reduce the number of shift (if applicable);
5. Reduce working days;
6. Reduce daily working hours;
7. Conduct retraining programs for employees;
8. Transfer employees to other suitable vacant positions;
9. *Lay off workers on a temporary basis (temporary shut down); and
10. *Pay cut for employees

*May be implemented with the written consent of employees or Trade Union representing the employees.

If all the above measures fail to achieve the desired results, employer may downsize or reduce head count by embarking on Voluntary Retrenchment Scheme (VRS) or Retrenchment exercise.

Voluntary Retrenchment Scheme (VRS)

Employer has to decide on the number of employees it wants to reduce, and which department is affected. A communication section must be held with all staff and departments concerned, to explain the reason of such VSS or retrenchment, and to clear any doubts that may arise. Staff will then be invited in writing to apply for VRS, whereby the staff shall be notified the compensation offered, usually inclusive of:

1. VRS benefits based on every year of service;
2. Notice / pay in lieu of notice; and
3. Pay in lieu of unconsumed annual leave.

From the applications made, the employer will inform the applicants as to whether their applications were successful. Employer is then required to:

1. Inform Ministry of Human Resource Department (MOHR) via PK Form on such VRS exercise one month before the VRS date. 
2. Ensure that Income Tax of the employee is cleared before releasing the compensation sum to him/her.

Meanwhile, employees who opt for VRS are required to sign an undertaking letter that it will be a full and final settlement with the company.

Retrenchment

Retrenchment procedures will be similar with VRS, except:

1. Retrenchment shall be on Last In First Out (LIFO) basis.
2. Post retrenchment obligation by the employer — In the event there arises a necessity to recruit employees for the category of employees who were retrenched, company is to give preference to the employees who were retrenched if they wish to be re-employed by the company.

Building a strong employee relations within an organisation means to create an environment which delivers what people want today. It could be done at the corporate level, and individual employee level, especially as a HR practitioner.

These are the practices that could be executed by a corporate in order to improve employee relations:

1. Corporate Principle

Today employees are very opinionated about the moral and ethical issues in the business. Employees want to be comfortable with what their employer stand for. By having a set of guiding principles and following them, an organisation creates a framework that allows for principle-centered policies, procedures and decisions.

2. Employee Feedback

Employee feedback can be done through conducting employee opinion survey. Employee opinion survey enable employers to find out what their employees care about, what are they concerned about and what they think of their employer.

3. Employee Participation

Employees want to be productive and involved. Do not hide information and do not do things secretly. Employees like to be informed, know what they are doing, and how their jobs contribute to an organisation’s success.

4. Employee Recognition

Employees want to be appreciated and recognised for their jobs. It is important to have a fair reward policy for the employees, that link their performance with rewards.

5. Competitive Compensation

Employees want to be paid competitively, commensurate with their knowledge, skills and abilities. Conduct annual salary survey, establish fair, consistent pay practices and ensure the entire compensation package is competitive.

Somehow or other, if an organisation is not able to practise the above, as a HR practitioner, we may try to do our part, as follow:

1. Communication

Employees today want to be knowledgeable about the organisation’s effectiveness and activities. Lack of communication will lead to dissent, rumor and incorrect information all over the organisation. Communication pulls the employees together into the family of an organisation.

2. Support

Employees want to receive assistance in balancing their work and family needs. Understand how the employees live outside the business tell them how the employer care and recognise their needs for that balance.

3. Direct Contact

It has a more immediate impact on employee relations. Examples: Walk around the work area and talking to employees.

At the end of the day, people want to feel good about who they are, what they do and where they work. Employee relations is about to create such environment to make them feel good about all these.

In the case of:

1. Any foreign workers employed by the Company detained by police due to whatsoever reasons, pending court hearing; 

2. Their permits are to expire soon, before the court hearing;

3. The Company does not want the foreign workers anymore.  

The Company needs not renew their permits and passports. After the hearing and sentence completed (if any), the Immigration Department shall contact the hired company to prepare flight tickets to send the foreign workers back.

Domestic Inquiry is an internal inquiry into some alleged misconduct by an employee. The main objectives of the domestic inquiry are to establish whether the employee is guilty on the allegation.

After the domestic inquiry,

- The Domestic Inquiry Panel is responsible to determine whether the alleged employee is guilty. The Panel does not recommend any action / punishment.

- The Human Resource Department will recommend the appropriate action / punishment.

- The Management is to decide the punishment orders.

If the employee is not satisfied with the decision made by the Management, he / she may appeal to the Management. The Human Resource Department will then to weigh all factors which include precedent set etc. If the decision is final, there is another avenue for the employee to appeal, which is the Industrial Relations Office.

There are two types of resignations i.e. voluntary resignation and involuntary / forced resignation.

Voluntary resignation means the voluntary termination of the employment contract by the employee. Involuntary / forced resignation means a resignation under compulsion, at the initiative of the employer, or an employer offered the employee the alternatives or “resign or be sacked” and, without anything more, the employee resigned.

Whether Forced Resignation Tantamount to Dismissal?

Case Study (VP Nathan & Partners v. Ilangovan Dorairaj A. Suppiah, Award No: 453 of 2000)

A major client of a legal firm, an insurance company, instructed the firm that it did not want the claimant to handle any of their files and the claimant was to relieved from having access to their files, without any reasons. A partner of the firm conveyed the insurance company’s instruction to the claimant. The claimant agreed to resign and left the company. The claimant then contended that he was asked to resign and because of this he had no alternative but to leave the firm. The claimant added that the firm also informed him that his future increments and the prospect securing a partnership with the company had been considerably affected.

Court Award

The conduct of the firm and its representative was material to this issue – the whole chain of events as forming one continuous story. The claimant had been informed that his advancement and his ability to continue in his chosen field as an advocate and solicitor would be affected. The Court held that the claimant had established, on a balance of probabilities, that he was required by the firm to tender his resignation and this was tantamount to a dismissal by the company.

Forced resignation may be tantamount to dismissal of the workman. It is the burden of the workman to prove that he had been dismissed instead of voluntary resigned.

Fixed-term contract means a contract that is stated to last for a set period of time. When a contract for a fixed-term expires, it terminates itself, it has not been "terminated" by either party.

Whether Failure to Extend A Fixed-term Contract of Employment Tantamoutg to Unfair Dismissal?

Case Summary (United Seino Transportation (M) Sdn Bhd v. Bahari Bin Bab)

The company was a transport company undertaking the transportation of goods for the entire group of companies and other companies. It is an on-going business. The claimant was working on a fixed-term contract of one year, and was extended for a further period of six months. When the claimant’s fixed-term contract expired, the same lorry was driven by another driver for the company for the transportation of goods. There had been no complaints against the claimant during his tenure with the company.

Court Award

In this case, the consideration was whether the workman’s employment was under a genuine fixed-term contract, i.e. whether an employer genuinely had a need for the service of an employee for a fixed duration and thereby employed the employee for the said term stipulated in the contract. Genuine fixed-term contracts are suitable for temporary, one-off jobs. The Court held that the claimant was an employee at the time of dismissal and his dismissal was without just cause or excuse. 

Case Summary (Sime UEP Development v. Chu Ah Poi, Award No: 66 of 1996)

The claimant was employed by the company as a clerk-of-works for 4 years on a yearly contractual basis. The claimant was not employed for a particular project but involved in various projects. He was also given salary increments each time his contract was renewed. The company contended that the claimant’s contract was not renewed due to the fact that there was a slowdown in the launching of new houses by the company and the fact that the project in which the claimant was involved had to come to an end.

Court Award

In this case, the consideration was whether a workman is a permanent employee despite renewals that depend on the absolute discretion of the employer. The Court held that this was not a temporary one-off job. No other contract clerk of works besides the claimant had been terminated. The claimant was in fact and in law a permanent employee and the contract was a permanent job dressed up in the form of fixed-term contracts.

Failure to extend the workman’s contract may be tantamount to dismissal of the workman. The company has to give a genuine reason as to why the fixed-term contract was not renewed.

Termination Simpliciter means a termination by contractual notice and for no reason, not grounded on any just cause or excuse.

 

Whether Termination Simpliciter Acceptable as Valid in Industrial Law?

 

"…It was also alternatively contended for the Company that it was a term of the claimant’s contract of employment that the claimant’s services could be terminated with one month’s notice or payment in lieu thereof, "in accordance with which term the service of the claimant was terminated". But this point of law has been settled for some years now: what is known as termination simpliciter is no longer acceptable in the industrial law, the termination of the employment of a workman contractually, if not based on just cause or excuse, would still be dismissed without just cause or excuse. (Pembenaan Hashbudin (M) Sdn Bhd v. Thambipillai Sivagnanam - Award No: 247 of 1987).