INTRODUCTORY EMPLOYMENT LAW
Discuss the principles of natural justice governing domestic inquiry in Malaysia and consider whether the principles are too rigid and could cause injustice to the employers. Recommend any amendments to the Malaysian law regarding this issue.
Principle of Natural Justice
As matter of fact, Malaysian has numerous kind of law that each kind of law is responsible to be as guidance for the law practitioner; lawyer, judges, to base their arguments and come out with ruling of each case brought upon them. As for now, we will be discussing on the principle of natural justice which in other way consistent to basic human right to be not be treated inhumanely even though they have committed dreadful offences. Natural Justice can be found in every law in Malaysia including the Employment Law 1955. Since it is about the basic human right, the principle can also be found in the Fundamental Constitution of Malaysia. When we talk about principle of natural justice in domestic inquiry, in the domestic inquiry itself, the conduct or the procedure inflict the principle. Domestic inquiry may be found in the Employment Law 1955 in Section 14 (1). In this section, it stated what is domestic inquiry and also the procedure which may include in the inquiry that bound to be followed by the employer whom wanting the inquiry to be brought upon them. Domestic inquiry is actually an internal trial done by the employer to decide either the offence done by the employee is amounting to misconduct that can be punish by sentence form by the employer himself. However, before a formal trial is conducted, the employer will first need to make an investigation to investigate the accusation directed to the employee by the employer. The employer will first need to gather the information to make the base of the accusation and if the information has been found enough to extend the accusation, then the employer will then need to distribute the show cause letter to give chance to the employee to confess upon the accusation. If the employee refuses to confess upon the accusation fall upon him, then, a formal trial will then be carried out.In the same clause, state that, the employee who in the period between the commencements of the domestic inquiry will be suspended from the work and the employer still needs to pay the wages but only half of it. Should the employee found innocent, the employer is bound to redeem back the other half of the pay.
Natural justice is applicable to any kinds of offences be it the criminal offences or the domestic inquiry. This principle is meant or it is consistent with the cause to safeguard the basic human right. Even though the evil must be prevailed, it is not an excuse for the human right to be neglected. Natural Justice and procedural fairness have the same meaning. They are being used interchangeably (Ombudsmen Western Australia). While implementing the natural justice where it safeguard the basic human right against the injustice of the administration or procedural to brought him before the justice. Hence it is consistent to saying of justice is not only be done, but seen to be done (Haswira & Anida, 2009). Based on this verdict, thus principle of natural justice is come about. The employer should abide by this principle in order the justice to be seen that it has been done in a situation where they want the inquiry to be brought upon them. How it is seen being done can be based on several principle which lay out under the Natural Justice. Natural justice can be practice in a sense of administrative action, quasi-judicial proceedings and sentencing procedure (Haswira & Anida, 2009) where the official or responsible party should play the natural justice according to its means so long as justice is being carried out.
The first element of natural justice is Audi Alteram Partem or right to be heard. Right to be heard here means that no one should be left or be condemned unheard (T.S Sivagnanam, 2009). No one should be left unheard regardless of the degree of the offence that he commit. He should not be treated unequally eventhough to what he had done is not something that worth to be treat humanely. Every offender either the criminal or industrial offender should have the right to be notified, right to defend, appeal and against conviction and also right not to be sentence twice of the same offence against the accusation fall onto him. All of this element constitute under the principle of Audi Alteram Partem.
The first element is right to be notified on the accusation. According to the decided case of Car Seat (M) Sdn. Bhd v Moh Mokhtar bin Mohd Kepol and 1 other , the court ruled that to whatever the ground of the accusation which is cost upon the offender, the offender has the right to be notified before he is being suspended from work or apprehended by the law enforcer. As in the case of inquiry, the employee who acclaimed by the employer commit a misconduct, before he or she being suspended from his or her work, he must be notified the ground cause and the accusation cost to him. The notification must be elaborate stating the justification and saying that the offender is obligate to attend the inquiry session as to decide on the case or accusation which brought upon him (Heddy Cordova, n.d). In the notification should also include the place, time and any other information which may deem important to be relay to the offender so that he would be prepare enough to attend the session. For example, Miss A is being accused by her employer of being found guilty of breach of trust and her employer wants to suspend her service and before she can be suspended, first thing first is that she must be notified the ground of the accusation. Then the accusation can be justified since the accusation has its ground.
Second element under the first principle of natural justice is the offender has the right to defend his or herself against the accusation. The offender has the right to bail him or herself from the accusation by using the evidence that is concrete and beyond reasonable doubt. According to Justice T.S. Sivagnanam (2009) in his lecture on Principle of Natural Justice, he said that the offender shall have the right to defend himself against the accusation by using the evidence and to call his own witnesses to prove his innocence. The employer cannot in any way or means obstructing the employee to defend themselves from the accusation made by the employer and should be given ample and enough time to prepare the evidence that might be useful in defending themself. The employee at the time of the session will be presented by the trade union that he is a member of or if he does not belong to any union that if he may wish to use the lawyer service to defend her case, they are welcome to do so and the employer has no right stipulated in any law can obstruct them. For example, after Miss A has known about the accusation and wanted to defend herself against the accusation, her employer cannot by any means obstructing her to do so and getting lawyer is she wishes to do so.
The third element is right to appeal against the sentence or decision made during the inquiry session. If the offender later found or think the sentence is not fair to his or her judgment or to the lawyer’s judgment, the offender may appeal for the sentence to be change. The offender may ask to lighten the sentence impose onto the offender or may ask to change the sentence before it is passed. As long as the sentence has not been made official, the offender may ask the employer to change the sentence or appeal against it. For example that can be made here in relating to previous example, Miss A has been tried and later the party ruled out sentences which indicate the penalty that she has to bear as a result of her misconduct. However, Miss A found out that the ruling was not right and she ask for her employer to change the sentence or in another way of saying, appeal against the sentence. It is illustrated in the case of Said Dharmalingam bin Abdullah b Malayan Breweries (Malaya) Sdn. Bhd. (1997). In this case, it was decided that the employee has the right to appeal against the sentence. It was also ruled that the employee whom obstruct from appeal against the sentence is the same or tantamount to denying his or her right to domestic inquiry as stipulated in section 14(2) of Employment Act 1955. Therefore, employer should be aware of it or any trivial things can happen to him as result of disobeying the law.
The fourth element is right to know a decision. In any proceeding or inquiry, not a single case left without a ruling sentence from the judge or the employer. The decision must be made known to the offender so that he or she can make decision based on the ruling. Whether he or she thinks that the sentence is fair or not, she can decide based on that and decides whether to accept the sentence or call to appeal against the sentence. As long as it does not officiate yet by any officer, it does not come to effect. For example, Miss A’s inquiry session has finished and she wants to hear the sentence after she defend her case. The decision can be made as a ground either Miss A want to precede with appeal against the sentence or not.
Last but not least is right not to be sentenced twice. This is stipulated under Article 7(2) of Federal Constitution. In the provision it says that, whoever has been committed for the same accusation or offence cannot be charged against him no more. The conviction in another way of saying cannot be on the same ground and the same sentence unless under certain condition which it may pursue to it. Unless it is either the sentence has been acquitted or retrial, only then the sentence can be imposed to the offender. For example, Miss A back to several years has been sentenced and accuse of the same accusation. She can no longer be tried for the same cause and the sentence unless given situation as stated earlier. So, that is why it is very important to state the ground of the accusation so that this thing could be hinder in the beginning.
First element of Natural has been discussed, which left the second element of the principle. The second principle is Nemo Judex Cause Sua Potest. This legal maxim, it indicates the protection of the offender against bias in decision making in domestic inquiry. It suggests that the decision making should be fair and equal to the offender and the decision should also be fair and tantamount to his offence. The responsible person should be free from bias and should give both offender and plaintiff equal opportunity for their arguments to be heard (Finin O’Brien, n.d). Even the offender who has committed the highest degree of offence, he shall not be discriminate before the law even the plaintiff think that the offender should not be granted with goodness after all that he did (the offence). Element of Nemo Judex Cause Sua Potest is actually the protection against bias on the procedure of conducting the inquiry. The procedure must be as clean and as transparent as possible as well as the sentence. How we can guarantee the offender right can be safeguard through the procedure is by selection of the person that will preside the session. It is being said that, the person or the observer shall not have any specific or personal interest over the party involved or the issues involved. The person who being appointed to preside the inquiry shall be totally strangers to both parties (both plaintiff and offender) as it is afraid if the mediator knows either one of the parties, the possibility that he can be bias to either part is higher since he can have interest over either party. Thus, through this, it can guarantee that the right of both parties will be safeguard before the law if this measure were to be viewed beforehand. For example, Mr H is being appointed as mediator in a domestic inquiry. Later he found out that, the offender or the employee whom being accused that will be tried is his cousin. Due to the personal relationship that Mr H and Miss A have, therefore, Mr H is not eligible or not fit to preside the session as it will lead to bias to the employer since the Mr H might rule out a sentence which will not fit to the degree of the offence done by Miss A who turns out to be his cousin.
On the question as to whether the principle of natural justice is undermining the right of the employer as in the case of domestic inquiry. Derive from the nature of the natural justice itself, whilst it indicate the instrument to safeguard the basic human right before the accusation or before the procedure to bring him before the justice due to his doing, it also in another way around do the same to the plaintiff. Why is it so? It is because, when it comes to procedure, it is bound to the law or regulation which requires every party to obey them regardless which party is he in. As in this case of domestic inquiry, it can be said that the employer will not at loss. They will gain something from obeying the principle. As being said before, as result of denying the right of the employee to defend his own case by using his own evidence and witnesses may subject to the denying the right of the employee to the domestic inquiry (Section 14(2) of Employment Act 1955) which may lead to injustice sentence since the employer is act on his own discretion without any professional involved.
Things that exist in this world are not perfect. It is subject to flaws and loopholes. Those flaws and loopholes indeed needed to be mending to make it perfect and make things in the future easier to be use and conduct. According to J. MacMillan (2007), he said in his paper, that too much of natural justice is the same to defiency. Why is it so? He looked into different perspective of the issues. According to him, he looked on the area of procedure itself, he said that the procedure is too much, there are many steps and it turns out making the domestic inquiry taking much longer time than it needs to be. The paperwork is too much and the submission of the evidence also not regular which there is not specific time that indicates when the party should submit their document and evidence. Therefore, this needs a new justification so that it can be improve from time to time.
The first suggestion is that in terms of the forming the decision. The decision will be made after the session has completed. Once panel have heard about the arguments that both party have brought, they will come to a decision that will decide the fate of the offender. However, to what degree that the fairness of the decision is the question. In Malaysia, the panel will be among the uninterested employee of the company and also other person that will be forming the panel of the inquiry. The employee even though does not have any relation to the case, he has relation to the company which may lead to bias to the part of the offender. The panel might take side to the employer as human cannot be predicted. They can change their minds and how far he is being unbias also the question. So in here, it would like if the employee should not be included in the panel of the inquiry.
The second recommendation is that the documentation of the process. As being said before, it requires a lot of paper work. Since it require a lot of paperwork, the period where to complete the procedure seems longer than it needs to be. Starting from the submitting the allegation to the body, to notify the offender till the completion all requires paperwork. It does not stop there, if there is any amendment to be made, it should be re-submitted once it is completed. Thus it require a lot of time than it needs to. Therefore, the responsible body should give steps or guidelines to every company to make things easier and runs smoothly.
The last but not least is about the consideration of the show cause letter. Many does not know what to include and what to explain in the letter stating his personal explanation over the allegation. According to the case of Razali v Andaman Langkawi (2011), this case has been submitted to the Industrial Court where before that the offender has made a show cause letter and later found out that the company said the explanation was not valid. This brought a wonder how much the explanation should be to be consider as a valid explanation. There is no valid guideline over this matter given from the tribunal. Therefore, it is recommended that the tribunal could give explanation of how the letter works and what to include in the letter so that it would not cause confusion.
Before this paper is ended, it would be nice to recap of what has been written so far. The law that governing the domestic inquiry as stipulated and formed by Malaysian legislative assembly is govern by the Employment Law 1955. The principle of Natural Justice can be found in the Federal Constitution of Malaysia where it lays out the basic human right or the basic right as Malaysian citizen. This principle does apply to every law in Malaysia and any procedure to bring justice to its place. It is because principle of natural justice is a nature law where it is applicable to every situation. In domestic inquiry, it lays out two different perspectives. First is Audi Alteram partem or right to be heard and the second is Nemo Judex Causa Sua Potest that is right agaist unbias procedure. These two principles do will help to ensure that employee or the offender is safeguard against procedure biasness. As being mentioned earlier, three recommendations have been pointed out. First is to leave the employee outside the panel member. Second is overlapping of the documentation process. Last but not least is a guideline on to write the show cause letter
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