To (DI) Or Not To (DI), That Is The Question

• Published date: 05 July 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
• Law Firm: SKRINE
• Author: Ms Selvamalar Alagaratnam and Adam Thye Yong Wei

A domestic inquiry ("DI") is an internal hearing conducted by the employer to provide an employee an opportunity to provide an explanation for misconduct alleged against the employee, before making a finding of guilt or otherwise. It is essentially a fact-finding exercise where there will be a prosecuting officer (usually a representative of the employer) and the accused employee, both of whom may call witnesses or produce documents before a panel or a single person who will decide whether the accused employee is guilty of the alleged misconduct.

The jurisprudence on the requirement (or otherwise) of holding a DI prior to the dismissal of an employee and on how the Industrial Court should approach the matter if a DI is held, has wound a long path in the past two decades. Some principles in relation to DI that were established over the years may be summarised as follows -

1. The failure of an employer to hold a DI before dismissing its employee is not fatal as the omission is "curable" by the inquiry that the Industrial Court is statutorily required to perform. The Industrial Court is duty bound to determine on the merits, firstly, whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct constitutes just cause or excuse for the dismissal (See Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd (and Another Appeal) [1995] 3 CLJ 344; and Milan Auto Sdn Bhd v Wong Seh Yen [1995] 4 CLJ 449);

2. The fact that an employer has conducted a DI which forms the basis for dismissing the employee is an entirely irrelevant consideration to the issue as to whether the employee had been dismissed with just cause or excuse. The findings of a DI are not binding as the matter is to be heard afresh by the Industrial Court. However, the Industrial Court may take into account the fact that a DI had been held when determining whether the employee was justly dismissed (See: Hong Leong Equipment Sdn Bhd v Liew Fook Chuan (and Another Appeal) [1996] 1 MLJ 481);

3. If the Industrial Court finds that a valid DI had been held, it will then confine itself only to determining whether or not there was a prima facie case of misconduct justifying dismissal (See: Bumiputra Commerce Bank Bhd v Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77; Multimedia Development Corporation Sdn Bhd v Clarence Augustine Tee Teck Huo [2018] 5 CLJ 570) and

4. The Industrial Court would commit an error of law if it accepts or disregards the DI findings/notes produced in evidence when arriving at its conclusion on whether the dismissal was with just cause or excuse, without first determining whether the DI was validly held, and whether the DI notes were an accurate reflection of the evidence of witnesses (See: Bumiputra Commerce Bank (supra) and Multimedia Development Corporation (supra)).

LATEST DEVELOPMENT

Recently, the Court of Appeal in Lini Feinita binti Muhammad Feisol v Indah Water Konsortium Sdn Bhd [2021] 3 AMR 375, considered the question as to whether the Industrial Court is duty bound to consider the findings made by the DI panel when deciding whether the employee's dismissal was with just cause or excuse.

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