Subject :
INTRODUCTORY EMPLOYMENT LAW
REQUIREMENT:
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 [1995], 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
(2960
words)
Jika anda nak jadi pintar ... WAJIB belajar sebab dengan belajar kita senantiasa berfikiran positif. Alhamdulillah untuk subjek ini saya dapat A. Syukur pada Allah SWT. Hanya Allah SWT sahaja yang Maha Mengetahui bagaimana keadaan diri saya ini. Ujian hidup membuatkan saya lebih kuat dan dekat dengan Allah SWT.
Alhamdulillah ... doakan saya selalu yew ... hanya Allah SWT dapat membalasnya.
0 Ulasan