Jal & Lim
Know your rights as an employer or employee ? Guidelines on Domestic Inquiry!
Guidelines on Domestic Inquiry
A Domestic Inquiry (“DI”) is an internal Hearing which is held by an employer to determine whether an employee is guilty of the misconduct or allegations which are made against him. Thus, the purpose of a DI is to:-
(i) give a chance to the employer to prove the charges of misconduct against the employee before punishment is meted out against the employee;
(ii) give a chance to the employee to be heard before the employer decides to impose a punishment on him (if any), as nobody should be punished without being given a chance to defend himself.
In conducting a DI, the rules of natural justice must be followed, failing which the employee may bring a claim against the employer for unfair dismissal. There is no fixed procedure in conducting a DI, but the DI should be conducted in accordance to the principles of natural justice and the panel of the DI should be seen to act in a fair and just manner to the employee.
The Panel of the DI should consist of :-
(a) Chairman – being a person who is not involved in the investigation of the offence and should have some knowledge of the DI process, procedures and regulations relating to employment law. If such person is not available in the company, the company may appoint an independent person who has knowledge of the DI process from outside the company to be the Chairman in the DI;
(b) 2 independent panel members – being employees from another department who are not employee’ direct superiors (but are of the same rank or higher than the employee) and are not involved directly with the investigation;
(c) Presenting or Investigating Officer – this can be the HR manager;
(d) A secretary – to record and take down the notes of the proceedings of the DI.
Note: the employee’s direct manager should not sit on the panel as this would appear to be biased against the employee.
The Hearing of the DI
The Chairman can begin by informing the employee of the procedure of the DI. The Chairman can ask the employee which language is to be used in the DI proceedings, as the DI should be conducted in a language which is understood by the employee. The Chairman may also inform the employee that the proceedings will be recorded and that minutes of the DI will be taken down in verbatim, whereby the minutes will be verified and signed by all parties subsequently.
Step 1 – At the Beginning of the DI
(1) The Chairman can begin by asking the employee whether she has received the notice of the DI and the charges which were made against the employee.
(a) If she says no, a copy of the charges may be forwarded to the employee and the DI may be postponed to enable the employee to prepare for her case;
(b) If the employee says yes, the Chairman may ask her whether she understands the charges against her.
(2) If the employee does not understand the charges, the Chairman may proceed to record a plea of ‘not guilty’ so that she can hear the evidence against her and understand the charges later;
(3) If the employee says that she understands the charges, she can be asked whether she pleads guilty or not guilty to the charges;
(4) If the employee pleads guilty to the charges, the Presenting Officer (“PO”) will be asked to give the facts of the case and the employee should understand and admit the facts which are presented by the PO. If the employee understands and admits the facts, the employee will be asked to mitigate. Then the panel can make their findings and recommendations later and the Company can then impose the punishment which it deems fit;
(5) If the employee pleads not guilty to the charges, please proceed to Step 2 below.
Step 2 – Employee Pleads Not Guilty
(1) If the employee pleads not guilty to the charges, the Chairman may proceed with the DI and ask whether the employee will be calling any witness. The Chairman may inform the employee that only relevant witnesses are to be allowed at the DI;
(2) The Chairman may then ask the Company whether it will be calling any witnesses.
(3) The PO may then present the facts of the case. After that, the PO may call the Company’s first witness.
Step 3 – Calling of the Company’s witness
(1) The PO will examine or question the Company’s first witness. The PO should not ask leading questions. If the Company’s witness wishes to tender any documents to prove the charges against the employee, the documents must be tendered through the said witness;
(2) Subsequently, the employee may cross-examine the Company’s witness;
(3) Then the PO will re-examine or question the Company’s witness;
(4) After the company’s witness have testified, the employee may be given a chance to clarify issues which may arise during the cross-examination, such as, asking the witnesses additional questions which the employee may missed out during cross-examination of the company’s witness;
(5) The above procedures are repeated for the other Company’s subsequent witnesses (if any);
Step 4 – Evidence by the Employee
(1) The employee will then give her evidence or her defence;
(2) The employee will be cross-examined or questioned by the PO;
(3) The employee will be given a chance to clarify certain issues;
(4) The employee may also be examined by the panel.
Step 5 – If the Employee brings her Witness
(1) After the employee gives evidence, she may call her own witness to give evidence by examining or questioning her witness. If there are any documents to be presented by the witness, this must be presented through the witness at this stage;
(2) The employee’s witness will be cross-examined by the PO;
(3) The employee’s witness will then be re-examined or questioned by the employee;
(4) The employee’s witness may also be examined or questioned by the panel.
Step 6 – Submission from the PO and Employee
After all witnesses have testified, both the employee and the PO may be asked to give their submissions to enable both parties to highlight or summarise the facts of the case to the panel.
Step 7 – Decision
The panel members are not required to deliver a decision immediately, as they may take reasonable time to discuss and analyse the evidence and witnesses’ testimonies that were brought before them to enable them to make a decision. Therefore, after the DI, the panel may fix a reasonable time to consider the evidence and to arrive at a decision. The panel can then inform the employee of the decision date and request the employee to attend on the date of the decision.
Step 8 - Recording of the DI Proceedings
The minutes of the DI should be recorded verbatim. A recording device can be used to record the whole proceedings of the DI. After the DI is concluded, the transcript of the recording can be sent to all parties to ensure the accuracy of the transcribing and to sign on the said transcript to show acceptance of the same.