Dismissal: Employee rights

1. Overview
Dismissal is when your employer terminating your employment - they don’t always have to give you notice.
If you’re dismissed, your employer must show they’ve:
• a valid reason that they can justify
• acted reasonably in the circumstances
They must also:
• be consistent - eg not dismiss you for doing something that they let other employees do
• have investigated the situation fully before dismissing you - eg if a complaint was made about you
If you’re a part-time or fixed-term worker, you can’t be treated less favourably than a full-time or permanent employee.
Notice period
You must be given at least the notice stated in your contract or the statutory minimum notice period, whichever is longer.
There are some situations where you can be dismissed immediately - eg for violence.
Getting your dismissal in writing
You have the right to ask for a written statement from your employer giving the reasons why you’ve been dismissed if you’re an employee and have completed 2 years’ service (1 year if you started before 6 April 2012).
Your employer must supply the statement within 14 days of you asking for it.
Your employer must give you a written statement if you’re dismissed while you are on Statutory Maternity Leave. You get this:
• even if you’ve not asked for one
• regardless of how long you’ve worked for your employer
Speak to your employer or check your employment status if you’re unsure of your employment status.
Reasons you can be dismissed
There are some situations when your employer can dismiss you fairly.
Not being able to do your job properly
You may not be able to do your job properly if, for example, you:
• haven’t been able to keep up with important changes to your job - eg a new computer system
• can’t get along with your colleagues
Before taking any action, your employer should:
• follow disciplinary procedures - eg warn you that your work isn’t satisfactory
• give you a chance to improve - eg by training you
Illness
You can be dismissed if you have a persistent or long-term illness that makes it impossible for you to do your job.
Before taking any action, your employer should:
• look for ways to support you - eg considering whether the job itself is making you sick and needs changing
• give you reasonable time to recover from your illness
If you have a disability (which may include long-term illness), your employer has a legal duty to support disability in the workplace.
Dismissal because of a disability may be unlawful discrimination.
Redundancy
Redundancy is a form of dismissal and is fair in most cases.
If the reason you are selected for redundancy is unfair then you will have been unfairly dismissed.
Summary dismissal
You can be dismissed for ‘gross misconduct’ without your employer going through the normal disciplinary procedures. This can happen if, for example, you’re violent towards a colleague, customer or property.
Your employer should always investigate the circumstances before making a dismissal, even in possible gross misconduct cases.
A ‘statutory restriction’
You can be dismissed if continuing to employ you would break the law - eg if you’re a driver in a lorry firm and you lose your driving licence.
It’s impossible to carry on employing you
If it’s impossible to carry on employing you, it’s likely to be fair. For example, if a factory burns down and it’s no longer possible to employ anyone.
A ‘substantial reason’
You may be dismissed fairly if, for example:
• you unreasonably refuse to accept a company reorganisation that changes your employment terms
• you’re sent to prison

What to do if you're dismissed
If you’re threatened with dismissal (or are dismissed) you can get help from a third party to solve the issue by mediation, conciliation and arbitration.
You can also speak to your union representative if you’re a member of a trade union.
Employment tribunals
If you’ve been unable to solve a problem between you and your employer, you can normally go to an employment tribunal.
In Northern Ireland, you can go to an industrial tribunal.
Qualifying period to claim unfair dismissal
You must have worked for your employer for a minimum period before you qualify for the right to claim unfair dismissal at a tribunal. If you’re classed as an employee and started your job:
• on or after 6 April 2012 - the qualifying period is normally 2 years
• before 6 April 2012 - the qualifying period is normally 1 year
In Northern Ireland, the qualifying period is still normally 1 year.
There is no qualifying period if you’ve been dismissed from 25 June 2013 because of your political opinions or affiliation. You’ll automatically have the right to go to an employment tribunal.

Domestic Inquiry

WHAT IS DOMESTIC INQUIRY?
Employers are often faced with the daunting task of handling disciplinary problems in the workplace. It is an easy option for management to terminate an employee the moment an offence considered graved is committed, however there are negative repercussion involve if it is not done in a proper manner. Dismissal has to be justified and it is the responsibility of the employer to prove the existence of such misconduct in a manner deemed fair.
A method often used to handle disciplinary problem at the workplace is Domestic Inquiry (DI).DI is conducted by the Management to investigate and to establish facts to a disciplinary act committed by an employee. In the process, recommended punishment is administered.

GUIDELINES FOR CONDUCTING DI
The Employment Act does not specify a set rule in conducting a DI, however some guidelines as provided in the Malaysian Employment Handbook (CCH Asia Limited 1995) are worth noting, and this includes:

•DI should be conducted within a short period after suspension of duty
•Charges brought against the employee should be precise and in writing
•The employee concern should be given ample time to prepare for his case and to consult
•During the DI, the employee should be allowed to be accompanied/assisted by his union representative (if unionized).
•DI should be conducted preferably by parties within the company who are not directly connected with the investigation and had no prior knowledge of the allegation.
•The recording of notes should be administered in a "question and answer" format, and both parties are required to sign the notes of proceeding to maintain fairness in reporting.
•Witnesses brought in during the DI can give their evidence in the presence of the accused employee.
•The panel of inquiry's decision should be based upon the recorded notes and act in an unbiased manner when arriving at a decision.

The period of suspension prior to DI is permitted for a maximum period of 2 weeks with half pay. This is only applicable for those employees falling within the scope of the EA. Should the accused employee be found not guilty of the charges placed against him, the employer shall restore to the employee the full amount of wages with-held and to reinstate the employee to the former position held with the same benefits and remuneration.

COMPOSITION OF PANEL OF DI

A typical DI would have a Chairman (C), Panel Members (PM), Secretary (S), Prosecuting Officer (PO) and an Investigation Officer (IO).

I. PANEL MEMBERS (PM) AND CHAIRMAN
Inquiry officers or panel members are nominated by the Head of Human Resources after consultation with the division heads. The ideal number of panel members would be between 3-5 including the Chairman. The rank of the Chairman has to be equal if not more superior to the rest of the members.

The PM should conduct the case with an open mind and not be influence by the character of the accused employee. Pm should not be briefed of the case prior to the di, and they should not attempt to find out about the case through the grapevine as these may unfairly influence the outcome of the di.

Ii. Prosecuting officer (po) the po's role is merely to prosecute the case and leave questions pertaining to the employee's guilt to the panel of inquiry. The po should not be part of the panel neither has he/she the right to make decision regarding the accused.

Iii. Investigating officer (io) prior to the di proper, the investigating officer (io) role is to conduct a preliminary investigation to determine if a prima facie case exist. During the di the investigation officer is required to read and present the case in a chronological manner commencing from the moment a misconduct is lodged, the process involved during the investigation period, and finally to the submission of statements made by witnesses or evidence related to the case in question. All statements made are confined to facts and no personal opinion is encouraged.

Source:
1. How to conduct a domestic inquiry, linda ang, 1996.
2. Procedure of domestic inquiry, jawatankuasa kaunseling insitu, jabatan buruh selangor/w.p.
3. Malaysian employers' handbook, 1995 cch asia limited.

Glossary: ex parte: inquiry held, even without the attendance of the accused employee, often willfully or without reasonable excuse. Prima facie: on the surface

section 13(2) states that "either party to a contract of service may terminate such contract of service without notice in the event of any willful breach by the other party of a condition of the contract of service"

section 14(1) states that "an employer may, on the grounds of misconduct, inconsistent with the fulfillment of the express or implied conditions of his services, after due inquiry, dismiss without notice the employee".
Natural justice principals states that: 1. Both sides shall be heard, and 2. No man shall be a judge in his cause.

Part ii steps in a domestic inquiry

step 1: preliminary investigation upon receiving report of alleged misconduct in order to proceed with a suspension and di, the management (upon receiving a report of an alleged misconduct) has to conduct a preliminary investigation to find out if a prima facie case exists to justify a disciplinary proceeding.

Should there be a case, a show cause letter or a charge sheet will be issued to the accused employee stating the charges leveled against the employee and the time period to respond to such charges. If the answer given is not satisfactory then the management can proceed with issuing a notice of inquiry.

Step 2: notice of inquiry the notice of inquiry should contain the charges (charges has to relate to the company rules and regulations) and be as specific as possible. If more than one charge are leveled against the accused, the subsequent charges should be in separate paragraphs.

It should also contain the time, date and place of the hearing. If suspension is to be administered prior to the di to facilitate further investigation, it should not be more than 2 weeks (ea section 14-2) with half pay.

The notice of inquiry should also contain an avenue for the accused to bring a witness to the inquiry or to be represented by a union member.

Step 3: hearing a proper di should commence with the following statement read out by the investigating officer:

i. Hearing ii. Date and time of inquiry iii. Venue of the inquiry iv. Name and designation of the accused v. Nature of misconduct vi. Designation of panel members

if the accused employee is absent without any explanation, even after a notice of inquiry has been served, the board can proceed with the hearing ex-parte.

If the accused is present, the charge(s) will be read out and his plea will be recorded. The plea is either guilty or not guilty. If the accused pleads guilty to a charge(s) then he/she will be given the chance to explain the circumstances, which led to the misconduct. The accused will also be allowed to express a plea for a lesser punishment.

For charges, which the employee does not admit, the burden of proof lies on the company. They now need to adduce evidence to proof the charges. Hence this may include calling in the company's witnesses. The witness will, be subjected to cross-examination by the accused employee, as well as from the panel members present.

Similarly the recording of evidence and cross-examination of the accused by company representative and panel members will be conducted during the proceeding of the inquiry.

Step 4: findings and decision of the board of inquiry the findings of the panel members will be based on the recordings taken during the duration of the proceeding. It should be clear, precise and unambiguous. The main function of the board at this juncture will be to determine if the alleged misconduct has been committed. If the accused is proven guilty then a suitable punishment will be decided. The board of enquiry may sometime not given the authority to decide on the form of punishment. If this arises, then the form of punishment would be left to the head of human resources to decide.