Speech by Dato' Jalaldin b Hussain (Chairman Industrial Court, Malaysia (Rtd)) & Tuan Mohd Khalid Atan (President, MTUC), given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015
Dismissal Procedure Complaint Investigation DI Requirements
1.
2. NORMAL PROCEDURE complaint – investigate – DI – Dismiss
Complaint & investigation – as per part 2.
DOMESTIC INQUIRY (DI)
See section 14(1) EA 1955.
- earning not more than RM 2000.
- conduct inconsistent with the fulfilment of express or
implied condition of his service.
See-Holiday Inn’ case (Award no 255 0f 1990 )
And Said Dharmalingam v Malayan Breweries
(Malaya) Sdn Bhd [1997] 1 CLJ 646.
See also Article 41 Code of conduct for Industrial Harmony.
If no DI company can still adduce evidence at trial in
Industrial Court to show dismissal was with just cause and
excuse-Milan Auto Sdn Bhd v Wong Sen Yen [1995] 4 CLJ
449 and Wong Chee Hong v Cathay Organisation (M) Sdn
Bhd [1988] 1 CLJ (Rep ) 298.
3. Requirements;
Hj Ali Hj Othman v Telekom Malaysia Berhad
[2003] 3 CLJ 310 not rigit as a formal trial.
a Sufficient notice given-Awd no 124 of 2011
b .CREU –Awd no 64 of 2011.
c .Charge not defective –Awd no 1687 /2006.
d .Plea – unequivocal – Awd no 856 /2011.
e .Right to cross examine-Awd no 1312/2012.
f . Impartial Panel=Awd no 1875 / 2008.
g .Notes accurate- Plaintree Wood Products v
Mahkamah Perusahaan Malaysia and Muhammad
Safarudin Chew no R1-25-42-2005.
h .Decision not perverse-Awd no 64 /2010.
4. When to start ;
Upon receiving reference letter ;
1.get/open file
2.ascertain reason for dismissal
3.who decide to dismiss
4.who recommended (any DI )
5.parties and documents involved
6.compliance with company’s procedure
7.availability of witnesses/documents
8.related issues
9 .assessment
5. 1.Ascertain facts not in dispute
2.Compliance with legal requirement
3.Claimant committed misconduct
4.Claimant’s explanation unacceptable
5.Misconduct serious / grave
6.How misconduct affected company
7.Finacial loss if any.
6. Decide whether to challenge ministerial
reference based on available documents
No legal issues /abuse of proses
No challenge – refer MEF / counsel
Get file and enter appearance at Industrial
Ct.
File forms A and B
Court informs mention / hearing date
7. SOC must contain comprehensive and relevant
facts and arguments of claimant’s case.
It forms the basis of claimant’s case
It binds the claimant to issues pleaded
- see: R Ramachanran [1997] 1 MLJ145; and
Ranjit Kaur S Gopal Singh [2010]8 CLJ 629
Must confine to four corners of pleading
Claimant will later engage / change counsel and
apply to amend pleading after your reply
8. Form J –to reply within stipulated time.
Study SOC
Reply to issues raised
First establish disputed /undisputed facts
Whether complaint made within 60 days
Prepare documentation and statement of
persons named in SOC and person in support
thereof / related documents to be filed
later.
9. Judicial discretion to grant or refuse leave to amend
SOC / SIR
Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors
[1983] 1 MLJ213- Federal Ct
Whether application bona fide
Whether it prejudice the other party
Whether it changed the character of the claim
See the following cases
i. Dr Soo Fook Meng [2001] 2 MLJ 193
ii. Matsui Sdn BHd [2003] 1 ILR 658
iii. Poovan Sinnasamy [2012] 2 LNS 1430
iv. Jasbir Singh v UMW Toyota [2013] 2 ILR 342
See Practice Note no 2 of 2010 application to amend
pleadings
SOC /SIR /Rejounder under section 29 (g) IRA 1967
10. * Claimant may or not file a rejoinder
Rule 11(1) Industrial Court Rules
* It must relate to SIR only –Rule 11(2)
*see-Malayan Banking Berhad v Gavin Ong
Chen Hung [2003] ILR 127
application allowed as no new issues raised
* If new issues raised object or request to be
allowed to reply.
* Objection on same grounds as amendment to SIR
see Biopro (M) Sdn Bhd [2003] 1 CLJ 191.
11. Practice Note No : 1 of 2003 –guidelines
Preparation : should be done when complaint
made /as soon as possible/investigation:
1. identify role of witness
2. what claimant alleged
3. chronology of events (date/ time)
4. relate with others to support
5. documents to produce / identify
6. Get to attest in case cannot be
found
7. what to disclose ?
12. Try to relate in a Chronological order
When ,who did what ,claimant’s role
Why is it wrong so to do
Were you a participant in the misconduct
Refer to witness statement
Additional question – make sure answer
Get witness to explain / clarify
13. Will go into detail / technicalities- CL
counsel
Make sure witness able to understand
Guess what will be asked
Consistency - documents/ other witness
Request to clarify question – buy time
Do not answer / commit if not sure
Inconsistencies there will always be
Must justify decision
14. Whether need to clarify
Contradiction need be clarified
Inconsistencies need not
Cannot leave open to 2 or more
interpretations
Must clarify that cl and cl alone responsible
Must explain inconsistencies / contradiction
15. Refer notes earlier;
Points to note ; avilability of witness and
1. procedural requirement
2.notes verbatim and maker available.
3.decision making proses- findings
4.perverse decision – it must be based on
evidence adduced at DI
5.format for decision grounds.
6.recomendation – on finding of guilt only
7.See Federal Court decision 10.12.2014
MAS v Wan Sa’adi b Wan Mustafa.