Untitled - Perbadanan Perpustakaan Awam Selangor

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Untitled - Perbadanan Perpustakaan Awam Selangor
The law of
domestic
1nqu1nes
•
•
•
and
dismissals
Syed Ahmad ldid
Barrister-at-Law (Inner Temple, London)
F.Inst.D, F.I.M.C., F.B.I.M.,
F.M.I.PM., M.M.I.M., M.I.I.M.
�
Pelanduk
Publicatti�S'N
AWAM snANGOR
Perbadanan Perpustakaan Awarn Selangor
Sungai Besar
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46300 Petaling
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Sdn. Bhd.
Selan gor
Malaysia.
1989
Third Prin ting
dullah Idid
id bin Syed Ab
Syed Ah mad !d
-207-7 (SIC)
ISBN 967-978
967-978-208-5 (H/C)
·
©
1988
reproduced or
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No. 81, Jalan
DEDICATION
In memory of my father
(Walid) Allahyarham Tuan Syed Abdullah Idid.
To my mother (Umi),
my isteri Noraini and
children
Sheriffah Noor-Khamseah AI- Idid
Syed Mohammed Idid
and Syed Akhbar Idid
without whose love and encouragement this book could not
have been completed.
ABOUT THE AUTHOR
Tuan Syed Ahmad Idid has enjoyed a series of successful
positions proving that a jack of all trades can be master of
each and a rolling stone gathers a fair bit of moss .
Tuan Syed began his career as a SociallY outh Welfare
Officer during Malaysia's Merdeka year. He then walked over
to the Malaysian Association of Youth Clubs as Regional/
Executive Secretary (and rose to Hon. Secretary-General and
later President) .
In 1 960 , Tuan Syed became a Cadet in the Royal Customs
and Excise where he was promoted to Acting Superinten­
dent within two years . He left the Customs after six years
to read law in England . He was called to the Bar of the
Inner Temple whereupon he returned to take up the posi­
tion briefly as Deputy Public Prosecutor and then as
Magistrate for Kedah/Penang.
When the private sector beckoned , Tuan Syed joined
Kumpulan Guthrie and , after two years , Dunlop Malaysian
Industries Berhad as Personnel & Industrial Relations
Manager , looking after both East and West Malaysia and
Singapore.
He was invited to , and did , sit as a Panel Member of the
Industrial Court .
Tuan Syed was again restless and relocated to Brunei as
First Class Magistrate, bestowed with Special Criminal
jurisdiction , for the Sultanate. This provided him vast
opportunities for travel in Asean and Europe . He was
appointed Director to the Board of a Group of Companies
( Insurance, Manufacturing , Finance) in Hong Kong where
he shuttled a week each month until he became homesick .
Tuan Syed then returned to Malaysia to take up the
current position as Director, Legal Division of Public Bank
Group .
KAMAR HAKIM, MAHKAMAH TINGGI
(CH,\MBERS OF
JUDGE., HIGH
MALAYSIA
COURT)
KUALA LUMPUR
FOREWORD
(justice Dato Harun
M.
Hashim , judge of the High Court)
During my term as President of the Industrial Court of
Malaysia ( 1980 to 1984) I observed that many trade disputes
could have been avoided if only management knew what
ought to be done at an early stage. Sometimes, if only legal
advice had been obtained before writing a letter was all that
was required to save the company time and expense. At other
times, inexperienced personnel managers were largely to
blame for getting the company into a mess with the trade
union. And, of course, there were occasions when in­
experienced trade union leaders embarked on lost causes .
Now for the first time in Malaysia we have a book that
will serve as a good working-guide to all those involved in
industrial relations work. Tuan Syed Ahmad !did should be
congratulated for his effort and energy in writing this book.
He has explained in simple terms the steps that should be
taken to avoid trade disputes and what should be done when
there is a trade dispute.
I commend this book to personnel managers and trade
union leaders.
Dato Harun M. Hashim
MAHKAMAH PERUSAHAAN,
(KEMENTERIAN BURUH),
JALAN MAHKAMAH PERSEKUTUAN,
50544 KUALA LUMPUR
FOREWORD
(President of the Industria l Court, Malaysia ,
Mr. Pong Seng Yee, ]. S. M. )
This publication of Tuan Syed Ahmad Idid appears to be the
answer to the prayers of many bewildered professionals and
lay persons in the field of industrial law. Who should be the
inquiry officer ? Is that a proper domestic inquiry ? How are
grievances or disputes to be dealt with and how are they to
be reduced ? These and many issues are examined under the
microscope by the learned author .
Tuan Syed Ahmad Idid has held high office both in the
public as well as the private sector and he is well equipped
to pour forth elucidation on the subject . He has put forward
his views through words, charts and diagrams, each with
varying degrees of effectiveness to cater for the perceptability
of the readers . I enjoyed reading the draft of this book which
was written with clarity and a rare touch of humour. I find
his advice of acting on a ' 'hot tip ' ' very profound ! ( page 40 ) .
With grievances nipped in the bud at the factory floor
and domestic inquiries better conducted, it is my sincere hope
that fewer cases will be referred to the Industrial Court ; it
will then be the pleasure of the government to reduce some
of the staff in the establishment. Domestic inquiries will
always be challenged ! Industrial relations will always
encounter bad blood or misunderstandings either on the part
of employers or union officials, but the objects of industrial
law will be served if parties can find :
the avenue to solving grievances ,
an acceptable inquiry to achieve the trut h , and
an equitable court to put an end to disputes .
Underlying Tuan Syed Ahmad !did ' s writing is a search
for the "good neighbour", be they sitting next-door or on
x
LAW OF DOMESTIC INQUIRIES AND DISMISSALS
the next work-bench or standing nearby! With industrial
harmony, everyone benefits - the corporation and the
nation and the whole being .
Fong Seng Yee
CONTENTS
Foreword
(YA Mr Justice Data Harun M. Hashim ,
Judge of the High Court)
Foreword
(Mr Fang Seng Yee, President of the Industrial
Court, MalavsiaJ
Preface
List of Cases
Reports and References (and their abbreviations)
Acts and their Sections
·
vn
tx
X'l-'
xtx
xxtx
xxxi
Chapter 1: Discipline
1
1. ·Why discipline ? Why at this time ?
1
3
-Governments
2. The Importance of Discipline or
What we can Achieve
3 . Formulating Policy
4 . Rules
·
5
6
8
Chapter 2: Disciplinary Procedures
10
Essential Features o f Disciplinary Procedures
(a) Discipline
(b ) Grievance Procedure
2. Action Process
3 . Disciplinary Actions
10
11
12
1.
Chapter 3: Inquiry
1.
Domestic Inquiry ( under the Law)
2 . Natural Justice
13
17
26
26
27
xii
3.
CONTENTS
(a) Autrefois Acquit/Convict
( b ) Sub-judice
(c) Double jeopardy
Effect of non-holding ( or improper holding)
of Inquiry
Chapter 4: Domestic Inquiry Procedure
1.
The Domestic Inquiry - Its Procedure
(a) The Complaint
( b ) Investigation ( Criminal & Civil Cases )
(c) Unjustified Complaint
- Careful Investigation
- Steps and formalities
( d ) Letter of Allegation
(e) Service of the Letter of Allegation
(f). Letter of explanation from the workman
(g) Minor Misconduct and punishment
( h ) Suspension Pending Inquiry
( i ) Notice of Inquiry
(j ) The Panel of Inquiry
( k) Presentation of the M anagement Case
(1) Preparation for the presentation of the Case
30
30
30
31
34
34
37
38
39
42
45
46
46
48
48
49
50
51
Chapter 5: Evidence
54
Evidence - (Rules, illustrations and explanations )
54
Chapter 6: The Hearing
74
1.
2.
3.
4.
5.
6.
7.
8.
9.
The Inquiry Starts - at the place of inquiry
Examination-in-Chief
Cross-Examination
Re-examination
Recording of the Proceedings
Plea i n mitigation
Findings and Recommendations o f the
Panel of Inquiry
Report of the Inquiry Officer/Panel
Punishment Orders
74
76
77
78
79
80
81
82
82
LAW OF DOMESTIC INQUIRIES AND DISMISSALS
Chapter 7: Penalties
1.
2.
3.
4.
5.
6.
7.
8.
9.
Oral Reprimand or Warning
( a) Caution
(b) Verbal Warning
Reprimand or Warning in Writing
(a) Warning
(b ) Written Warning
Final Written Warning
Suspension without pay for up to seven ( 7 ) days
Deferment , withholding or stoppage of annual
increment
Downgrade the Employee/Demotion
Constructive Dismissal
Dismissal
Any other Punishment Permitted under the Law
xiii
87
87
87
87
88
88
89
89
89
90
91
91
92
98
Chapter 8: Appeals
1 02
1 . Records
2 . Further action
1 03
1 03
Chapter 9: Disciplinary Action
1 05
1.
2.
3.
Can Disciplinary Action be Taken against
Top Officials?
Who is a ''workman ' ' ?
Can the Inquiry b e a n Ordeal?
1 05
108
11 1
Chapter 1 0: Awards
1.
Industrial Court Awards - Backwages &
Compensation
Chapter 1 1 : Grievances
1.
2.
3.
4.
5.
6.
7.
Grievance Procedure
Provisions in the Industrial Relations Act , 1 967
Definition of Grievance
Definition o f Complaint
How can Management Avoid Grievances?
The Procedure
Representation
113
1 16
1 16
1 19
120
120
123
125
125
CONTENTS
8.
9.
xiv
Supervisors
Actions they should take
( a ) How to Handle a Problem/Determine
126
128
Obj ective
( b ) Stages (Graphic )
128
129
Chapter 12: Collective Dispute Procedure
131
1 . Conciliation Proceedings
2 . Redundancies & Retrenchment
133
133
Appendices
1 38
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
Appendix
A ( Letter of Allegation )
( Letter of Explanation )
C ( Letter o f Warning)
D ( Notice o f Inquiry )
E (R eport of Inquiry )
F ( Punishment Orders )
G ( Acts o f Misconduct, a list of
H - Grievance Procedure
- in note form
Appendix I - Criminal Procedure Code
- some sections
Appendix J - Some Malaysian Industrial Court
decisions
Appendix K - Judgment of the Supreme Court
in Civil Appeal No. 4 1 4 of 1 986
delivered on 17 O ctober 1 987
B
Statistical Information
1 38
139
140
141
142
143
144
148
1 53
1 58
163
1 74
- Cases dealt by Industrial Relations Department 1 74
1 75
- Cases dealt by Industrial Court
Index
1 80
PREFACE
I am pleased to write this book (which I hope will encourage
discussion and learning ) on the topic of " Discipline &
Procedure at a Domestic Inquiry & Handling of Grievances
& Disputes ' ' . I am delighted to make this presentation
because the subject of discipline is very near to my heart
although I am not a martinet. I sincerely believe that in every
organisation there must be discipline or there will be chaos.
Only through discipline can there be respect for superiors
and subordinates.
A retired headmaster who became a Personnel Manager
once said that his jobs as a Headmaster and as a Personnel
Manager were similar because through his experiences he
found that adult employees do behave and like to be treated
as "children" They like to be praised , they like to receive
presents from time to time , they like to be pampered but they
will also accept punishment if the pun is hment is merited.
Likewise employees too like to see justice. They expect
Management to be impartial and not to practise favourit ism
or nepotism.
I have upon record that in the very good old days the
estate managers and managers who controlled successful
business organisations behaved like kings ( and naturally they
*
were accorded the treatment befitting kings ). Or we could
*
One must not confuse this with the colonial masters who mistreated
Asians as "backward slaves" . See Award No. 82 of 1 986 between
Northern Mobile Crane & Transport Co. Sdn Bhd and Tan Seng Bee
@ Tan Boh Bee and Tan Yoong Wah where the Court observed "that the
dismissal was effected in the 'high and mighty ' fashion reminiscent of
the colonial masters ' ideas of the right to hire and fire at will , concepts
which are long out-of-date. in present-d ay industrial relations . "
xvi
LAW OF DOM ESTIC INQUIRIES AND DISMISSALS
say they were " monarchs of all they surveyed " . Today we
have on the extreme end a new kind of familiarity called the
"Open- Door Policy " where senior management mix and
become familiar with operatives and staff . ( This is akin to
the X and Y theory . ) A few believe that the " Open - Door
Policy " makes everyone happy . Is this genuinely true ?
Researchers have shown that this extreme policy may
encourage the attitude of contempt ( ' ' familiarity breeds
contempt " ) though a true open- door attitude towards
subordinates on the part of the immediate supervisor is
helpful in improving communication . I am recommending
a path between these two which will lead to the establish­
ment and observance of discipline in every business organisa­
tion which needs:
( a) industrial peace
(b) happiness for all employees irrespective of status and
(c) further progress and profit which will then lead to greater
prosperity for the community and for the nation as a
whol e .
I think that those who had a n open - door policy might
have mistaken the days gone by when managers used to call
each other Bob , Bill , Jack , etc . These first names were and
are effective to make management strong and healthy but
they were and should be confined to managers or those in
management positions or persons of equal status or in
positions within the same strata. Familiarity between seniors
and their j uniors may not be permitted nor would such a
s it u ation guarantee respect , motivatio n or cordial
relationship s .
*
A manager ( this term includes a director ) should not
be a politician . A politician tries hard to court popularity
( which may mean cutting corners or making inconsistent
decisions ) . We know too well that popularity is not a test
of true merit . What a manager should strive for is not
popularity but merit and he ( this term embraces a she ) must
walk on the path of being right and just . This is the road
to work smart and productively. While a magistrate may
•
A manager can be an officer. executive, supervisor. governor ,
superintend ent and any other d esignation whom people respond to.
PREFACE
xvii
sentence a person to imprisonment and a judge may sentence
another to be hanged until dead , the role of the manager
in enforcing discipline is to maintain his employee' s rice bowl
and career . . . an equally important task which demands for
qualities of truthfulness and the ability to dispense justice
for all without prejudice or rancour.
I hope this book will encourage the highest standards of
discipline at all levels . For the 2 3 per cent of deviants in
any organisation I know this book can offer them a hearing
and fair play. While the procedure may be seen as tilting
towards the employees , organisations and corporations
should take heart that the end result of a proper procedure
is improved relations and better image. The necessity for this
book is enhanced by the recent High Court judgment which
lifted the life ban on a former international footballer ; the
j udgment made it clear that " even domestic or in-house
inquiries have to be conducted in accordance with the rules
and procedure ' ' . The rules of natural justice must apply
' ' regardless of the offence or the severity of the offences ' ' .
There is no room for arbitrariness even in sports and
professional organisations when handling disciplinary
matters , equally so in companies .
Way back in 1 972 , I made a presentation on Discipline
to the top Management officials of Dunlop Malaysian
Industries Berhad at a conference on Frasers' Hill. I have used
my Paper at that conference as the basis of this book. Since
then I am happy to note that several companies have
utilized the ideas put forth .
It is my fervent hope and prayer that this book will help
cut down disputes and indiscipline between employees and
employers . I am therefore gratified to note that a work plan
to improve industrial relations systems and practices in Asean
has recently been adopted by the Programme Advisory
Council ( PAC ) , a joint project of the United Nations
Development Plan ( UNDP) and International Labour
Organisation ( ILO ) and Asean (Source : Bernama ) .
I wish to express my sincere appreciation to :
( a) YA Mr Justice Dato Harun M . Hashim, Judge of the High
Court , Kuala Lumpur for kindly perusing my draft and
for the Foreword.
(b) Mr Fong Seng Yee , President of the Industrial Court
Malaysia , for suggestions and the Foreword .
-
xviii
LAW OF DOMESTIC INQUIRIES AND DISMISSALS
(c) The Public Bank Group, particularly Tan Sri Dato' Teh
Hong Piow and the Top Management colleagues for
affording me the opportunity to update my Paper
during my leisure and for their goodwill.
(d) Encik Ahmad bin Mohd. Idrus, Director-General and
MrS. Sivagnanam, Deputy Director-General of Industrial
Relations, Ministry of Labour for comments and
observations.
(e) The Malaysian Institute of Personnel Management
(President, Council and Members) for supporting this
project which is directly relevant to the objectives of the
Institute as well as the syllabus of the Certificate and
Diploma programmes.
(f) Personnel and Industrial Relations practitioners for their
views, thoughts and feelings shared in the hope that
industrial relations in Malaysia will improve.
I was most touched by the kindness of Mr Fong Seng Yee
and MrS. Sivagnanam, each of whom not only provided
suggestions for additional cases but talked to me at some
length on improvements to the draft. Such gesture on their
part is a dream come true to authors because independent
judgments particularly by officials in the right spots are most
invaluable to the texts. I then made revisions and added
several other pointers extracted from other sources.
Should there be any shortcomings, information -wise,
legal-wise or otherwise, the responsibility must rest entirely
with me.
Syed Ahmad Idid bin Syed Abdullah Idid
Note:
YA
Mr. Justice Data Harun M. Hashim is now elevated
to the Supreme Court and Mr. S. Sivagnanam to Registrar
of Trade Unions, Malaysia.
LIST OF CASES
Name of Cases/Citation/References
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
Award
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
24 of 1975 (of the Industrial Court Malaysia) 31
86 of 1977 52
79 of 1981 44
120 of 1981 53
89 of 1982 44
110 of 1982 53
11 of 1983 113
36 of 1983 113
39 of 1983 1 13
40 of 1983 113
54 of 1985 97
26 of 1986 91, 100
137 of 1986 44
142 of 1986 30
301 of 1986 (J) 19
247 of 1986 30
A
Re Amin, U983J 3 WLR 258 169
Anthonian Store Sdn . Bhd . and Lee Ah Koh @ Francis Lee Che
Koh , Award No. 42 & 194 of 1986 110
Asia Motor Co . ( KL) Sdn . Bhd . and Puan Cho Mai [email protected] May
Phung, Award No. 198 of 86 (J) 108
A s iatic Deve l o p m e n t B h d . ,
Kulim a n d M u n i n a t h a n
Thatchanamoorthy , Award No. 285 o f 1987 115
Associated Tractors Sdn . Bhd . and Tractors Malaysia ( 1 982 ) Sdn .
Bhd . and T. Vijayakone 136
Audio Electronics Sdn . Bhd . , Penang and Kuldip Singh s/o Athma
S ingh Penang , Award No. 193 of 1987 53
xx
LAW OF DOMESTIC INQUIRIES AND DISMISSALS
B
B . Surinder Singh Kander v. The Government of the Federation
of Malaya , (1962) ML] 199 28, 170
Bank Bumiputra ( MJ Bhd . and George Thomas, Award No. 282 of
1987 32, 52, 86, 115
Bank Bumiputra Malaysia Berhad and Nga Suk [email protected] Wu Soo
H wa , Award No. 304 of 1987 40
Bata ( Malaysia ) Bhd . , Kelang and Leong Yin Cheong , Award No.
2 7 of 1983 94
Benta Plantations Bhd . , Ladang Sabai , Pahang and Kesatuan
Kakitangan Ladang-Ladang Seluruh Tanah Melayu, Award No.
107 of 1983 53, 157
Berthelsen J . P . v. Director-General of Immigration ,
134 (SCJ 32
(1987) 1 M]L
Bootong Estates Sdn . Bhd . and Shanmugan A/L Punniah ,
No. 11 of 1986 51
Award
Bradken Malaysia Bhd . , Ipoh and Kesatuan Pekerja-Pekerja
Perusahaan Membuat Jentera , Award No. 43 of 1983 32
British Home Stores Ltd . ( Appellant ) v. Burchell ( Respondent ) ,
(1978) IRLR 379 58
British Labour Pump Co . Ltd . v . Byrne ,
(1979) I. C. R 347 37, 167
(E. A . TJ (1979) IRLR 94
Buckingham and Carnatic Co . Ltd . v. Workers of the Company ,
(1952) Lab. A . G 490 86
Buckingham and Carnatic Mills , Madras
Buckingham and Carnatic Mill s , Madras ,
(SCJ 50
v.
Workmen
in
(1970) 1 LLJ (31)
Bumpus v. Standard Life Assurance Co . Ltd . , (1974) IRLR 232 100
Burn v. National Amalgamated Labourers ' Union , (1920) 2 Ch.
364 90
Byrne v. Kinematograph Renters Society Ltd . ,
27, 32
(1958) 1 WLR 762
c
Calvin v . Carr and Others, (1979) 2 AER 440 171
Campion v . Hamworthy Engineering Ltd . , (1987)
January 104
Times 30
Cathay Organization ( MJ Sdn . Bhd . v. Wong Chee Hong &
I n dustrial Court of Malaysia, Supreme Court Appeal No. 194 of
1986 100
C athay Organization ( M) Sdn . Bhd . and Kesatuan Kebangsaan
Pe kerja-Pekerja Wayang Gambar & Taman Hiburan, Award No.
199 of 1985 28
LIST OF CASES
xxi
Cathay Organization ( M ) Sdn . Bhd . and National Union of
Cinema & Amusement Workers , Award No. 73 of 1983 130
Cemantech Sdn . Bhd . and Cik Lee Yew Lin , Award No. 275 of
1987 98
Ceylon University v Fernando ,
pg 61 27
(1960) 1 WLR 223 (1960) 1 AER at
Chartered Bank , Penang and Yeoh Teng Hock ,
1983 38, 82
Award No. 53 of
C hartered Bank and the National Union of Bank Employees ,
Award No. 104 of 1983 85
Cheong Fatt Meng and Intechem Toyo SEA.
1977 53
Award No. 104 of
C hin Thoong Sam and Shell Malaysia Trading Sdn . Bhd . ,
Award
Clarion ( M ) Sdn . Bhd . , Penang and Kesavan Sivalingam ,
Award
No. 52 of 1977 53
No. 98 of 1987 95
Cleemar Oil Tools Sdn . Bhd . and Puan Mariam Bte . Mohamed ,
Award No. 41 of 1986 108
C linic Chin & Tong Lim and Dr Tan Lang Huah ,
of 1986 114
Award No. 287
E x . p. Cocks , Re-Poole , 21 Cb. D, 397 36
Comex Services Asia Pacific Region , Miri and Grame Ashley
Powder , Award No. 224 of 1987 24
D
Dah Yung Steel Manufacturing Co . ( M ) Sdn . Bhd . and Metal
Industry Employees Unio n , Award No . 33 of 1984 33, 101
Dairy Maid Sdn . Bhd . and Woo Sam Mui , @ Woo Lai Wah of
Bentong , Award No. 94 of 1987 51, 96
Dr A Dutt v. Assunta Hospital , (1981) 1 MLJ 304 F. C. 32, 35,
·
110, 113, 166
Dreamland Corporation (M) Sdn. Bhd . , Taman Selayang Baru and
Choong Chin Sooi , Award No. 141 of 1986 35
Dreamland Corporation ( M) Sdn . Bhd . and Choong Chin Sooi and
I ndustrial Court of Malaysia, Supreme Court Civil Appeal No. 413
of 1 986 52, 115, 163
Dunlop Industries Employees ' Union v. Dunlop Malaysia
Industries Berhad & Anor , Supreme Court Civil Appeal No.
481/1986 170
E
Earl v. Slater & Wheeler ( Airlyne ) Ltd . , (1972) ICR 508 167
East Asiatic Co . ( M ) Bhd . and Cik Liliana Sau Lee Ling 135
Untuk melihat muka surat seterusnya, sila berhubung
dengan petugas kami di kaunter.