MANAGING

DIFFICULT
EMPLOYEES AND
STEPS IN
CONDUCTING
DOMESTIC
INQUIRY By
Tengku Sharimi Bin Tuan Ismail
 Module
•1 Positive Discipline
• Definition
• View Of Industrial Court
• Right Of employer
• How to prepare positive discipline
Discipline is being defined as:

1. State of employee self control and

orderly conduct.

2. It also invokes a penalty against an

employee who fails to meet
established standards or regulations.
DISCIPLINE
In the case of Munusamy
S/O B.A Rajanaido Vs
Kamiri Estate ( IR Award
No 22 of 1975); Discipline
is not an order but
a proper behavior to
describe the company
image for both benefit so
that public will have
confidence to such
organization.
 Company Right to discipline their
workers.

• In the case of All Malaysian Estate Staff Union Vs Peninsula

Plantations Sdn Bhd ( IR Award No 6 of 1974), Court had agreed
with the employer during their wrap-up session that the
employer had a right to discipline their employee with suitable
method on any misconduct.
In the case of Goodyear Malaysia Berhad Vs
National Union of employees in Companies
Manufacturing Rubber Products (IR award 63
of 1986)
We ( The court) fully understand the discipline
within the industries is for the productivity
effectiveness. If each employee allow to do what
ever they like, productivity process will be not
being carried out in a good manner.
With such attitude will not only a waste but in a
long run, it may be giving you and the union
tremendous impact. The court is aware that
employer’s right to discipline their employees.
 RIGHT OF EMPLOYER
AND EMPLOYEE

• In the case of Rasa Sayang Hotel Penang Vs National Union of

Hotel, Bar & restaurant workers ( IR Award no:82 of 1982
• It is agreed on the Employers right to penalty their workers
however employees right for not being penalty is when
there is no misconduct. Before the hotel management give
penalty, the misconduct must be proven.
PROCEDURES ON INDUSTRIAL HARMONY
Rules in disciplinary action:
1. Employer should determined and established
an effective, fair and fast rules. Such rules
should be make known to all employees or
union members. The employer should also
communicate on the punishment and
disciplinary action if they break the rules.
2. Type of punishment should be decided based
on the seriousness of misconduct.
3. No employee should be dismissed on their
first case/ misconduct unless it was very
serious or major.
The Component of Discipline
Discipline matters are normally
involve the following component :
1. Misconduct
2. Negligence

3. Poor performance which

not meet the
expectation
4. Negative Attitude
Disciplinary procedure should be inwriting
and based on natural justice in which need
to have the following provision accordingly:
1. Employee should be given a written notice
on their misconduct
2. Decide who have the authority to take
any disciplinary action
3. Employer should give full consideration
and immediate to all relevant factors.
• Should give the employee an opportunity to present his/her
case and to appoint a representative either through other
employee or by union reps.
• The respective officers or immediate superior should give a
warning at initial stage if it is not a major misconduct
• For any major misconduct, an official written warning to explain
such misconduct and the action could be taken against them.
• The employee may appeal to top management on
any decision.
MODULE
2• Type of misconduct
• What is misconduct
• Minor and major misconduct
• Procedure for Minor misconduct
• Procedure for Major miscondcut
 What is
misconduct ?

Misconduct is an act conducted by employee

which against the company rules and regulations. In order to
handle all those misconduct, a proper disciplinary action should
be taken accordingly.
How to determine on the seriousness of
discipline matters whether it is minor or
major:

•Generally it is quite difficult to

differentiate between major or minor.
•However a major misconduct normally involve
bad behavior which not meet or inline with
management expectation either directly or
indirectly giving a serious impact on the
relationship between the employer and
employee.
 Give some
example
• Minor Misconduct

• Major Misconduct
Case
Study
• Ali has been appointed as a Mechanical Technician and
need to go through 3 months probations.
• Before complete the probationary period, Ali’s Boss would
like to terminate him due to poor performance for the
past 2 months and refer to you for further action.
• Pls advise
Procedures in handling Minor
misconduct
• Once you received a report, issue a show cause letter.
• Upon reply of such show cause letter, HR together with
HOD need to justify the reason or reply given in the show
cause letter
• Proceed with necessary action.
• Record such action in their personal file
 MINOR MISCONDUCT FLOW CHART
Minor Misconduct

NOTE:
All these process shall be carried
out by
Explanation accepted - case close
respective HOD / line mnagaers or
Show cause Letter
supervisor an not necassary by HR
department except the final stage
Explanation NOT accepted

Counselling
and verbal warning

Explanation accepted - case close

Repeating Same Show cause Letter
misconduct
Explanation NOT accepted 1st written warning letter

Explanation accepted - case close

Show cause Letter
Repeating Same
2nd and Final written Explanation NOT accepted misconduct
warning letter

Show cause Letter

Repeating Same Explanation NOT accepted
misconduct
Explanation accepted - case close
 STEPS IN MAJOR MISCONDUCT
Investigate
Suspend under EA
14(2)

PRIMA
FACIE
Ye No
s
Prepare Charge
sheet And show Case close
cause letter

Explanation Explanation Domesti

accepted not c
Case close accepted
Inquiry
Guilty
Warning Letter Punishment that involved:
• Dismissal
• Down grade or demoted
• Pay cut
•Freeze contractual bonus or fix
Not increment
guilty • Suspension without pay
Case
Sample of show cause
letter
Tarikh :
No. Pekerja :
Bahagian :
Kepada :
Daripada :

Perkara : SURAT TUNJUK SEBAB / SHOW CAUSE LETTER

Kami menerima laporan bahawa anda pada telah

Mengikut pada senarai salah laku yang terdapat di dalam buku panduan pekerjaan, ini merupakan satu kesalahan ringan/ berat, iaitu

Anda dengan ini diberikan tempoh selama hari untuk membuat penjelasan secara bertulis mengapa tindakan displin
tidak boleh diambil ke atas anda.
Sekiranya pihak kami tidak menerima apa-apa penjelasan dari anda pada tarikh yang dikehendakki, kami akan menganggap bahawa
anda tidak mempunyai sebarang penjelasan dan keputusan akan dibuat berdasarkan pada maklumat-maklumat hasil siasatan kami.

Saila tandatangani surat ini sebagai tanda penerimaan surat tnjuk sebab
ini. Sekian, terima kasih,

Yang benar Saya akui menerima dan memahami isi surat ini

Nama : Nama :
Jawatan : Jawatan

:
Tarikh : Tarikh :
 Sample Of Verbal
Counseling
Tarikh :
No.Pekerja :
:
Bahagaian :
Kepada :
Daripada

PERKARA : KAUNSELING LISAN / VERBAL COUNSELING

Merujuk kepada surat tunjuk sebab bertarikh Mengenai salah laku :

Anda dengna ini telah diberiikan kaunseling sacara lisan.

Melalui kaunseling ini anda bersetuju akan

Nama dan tandatangan orang yang memberi kaunseling Saksi

Nama : Nama :
Jawatan : Jawatan:
Tarikh : Tarikh :

Saya dengan ini memahami segala perbincangan dalam sesi ini Di sahkan oleh ketua Bahagian/Jabatan

Nama
( Pekerja yang menjalani sesi kaunseling) Nama :
Jawatan Jawatan
Tarikh Tarikh
 Sample Of Warning
Letter
Tarikh :
No.Pekerja :
:
Bahagaian :
Kepada :
Daripada

PERKARA : SURAT AMARAN / WARNING LETTER : PERTAMA / KEDUA / AKHIR

Berdasarakan pada siasatan kami dan juga penjelasan dalam surat tnjuk sebab anda bertarikh kami dapati ada telah melaku
Kan salah laku :
Dan selaras dengan senarai salah laku yang tertera di dalam buku panduan pekerjaan, anda telah melakukan kesalahan tersebut
kali Pertama / Kedua / Ketiga
walau pun telah diberikan Kaunseling / amaran yang berkali-kali sebelum ini bertarikh
Namun tiada perubahan dilakukan.

Kesalahan tersebut secara terang dan nyata menyalahi peraturan dan undang-undang syarikat yang perlu dipatuhi
sepanjang Perkhidmatan anda.
Anda dengan ini dinasihatkan secara serius agar tidak mengulangi salah laku berkenaan kerana tindakan displin yang lebih
serius Akan dikenakan terhadap anda.

Pegawai yang mengeluarkan surat amaran Saya dengan ini menerima dan faham isi surat ini

Nama : Nama :
Jawatan : Jawatan

:
Tarikh : Tarikh :
Salinan – Fail peribadi, Ketua jabatan
Case
Study
Ali had been absent from 3rd Of August to 6th of
August 2005 without news. When he turned up on
the 7th August he brought a piece of MC which
later on you found out the
date has been altered. Ali’s HOD fwd the case to
you for further action.
Module
3
LAW OF DISCIPLINARY ACTION
• Employment Act 1955
• Common Law
• Industrial Court Award
• Requirements of due inquiry
Type of Termination/Dismissal

• Breach of contract
Termination or dismissal can be caused of
breach of contract by any party

• Frustration Of Contract – Due to certain classical reason

and reasonable period whereby employee could not
perform or be present to work
• Constructive dismissal
• Breach of contract
• With The intention
• Leave the company asap

• End of fix term contract – as according to the

employment contract
• Poor performance – proper evaluation and warning
• Misconduct
PART II -CONTRACTS OF SERVICE SECTION 14
Termination of Contract with special reasons

• (1)An employer may, on the grounds of misconduct inconsistent with the fulfillment
of the express or implied conditions of his service, after due inquiry --
(a) dismiss without notice the employee;
(b) downgrade the employee; or
(c)impose any other lesser punishment as he deems just and fit, and where a
punishment of suspension without wages is imposed, it shall not exceed a period
of two weeks.

• (2) For the purposes of an inquiry under subsection (1), the employer may suspend
the employee from work for a period not exceeding two weeks but shall pay him not
less than half his wages for such period:
Provided that if inquiry does not disclose any misconduct on the part of the
employee the employer shall forthwith restore to the employee the full amount
of wages so withheld.
Module
4
DOMESTIC INQURY
• What is domestic inquiry?
• Composition of domestic inquiry.
• Types of domestic inquiry.
• Preparations to conduct inquiry.
• When employers do not need to conduct inquiry
What is
Investigation ?
• Is a process of getting
information related to
misconduct.
• Effort of getting facts and truth
including accident
• To ensure fair justice
Who will be the
Investigator
• Anybody can be the investigator officer and not necessary
the HR Off.
• The most important thing the investigation should be
done thorough and detail and must be completed within
short time frame
Methods in Making
accusation
• Specific
• Clear and precise
• Date and time – use at around or between
• Location and place
• Emphasize minor or major misconduct
• Easy to understand
• Base on facts
Sample Of Accusation -
1
Absent
• On 2nd May 2005 you have been accused absent for duty
without leave and approval from your immediate
superior
Sample -
2
Fraud
• On 2nd May 2006, you have been accused together
with En. Ali from Company ABC Sdn Bhd to create a
false invoice with the value of RM3,500 with the purpose
of cheating the company and you have abuse your
authority by certified such invoice
Sample -
3
• Threat
On 2nd May 2006, at around 8.30am you have been
accused threated your immediate superior En. Ali by
saying “ Aku jumpa kau kat luar, aku belasah kau cukup-
cukup”
 What is Domestic
Inquiry

• A situation where an employee being accuse on a misconduct

and being given an opportunity to answer the accusation
accordingly
• The opportunity to provide explanation (answering the
accusation) should be given before the punishment given.
• The accused employee shall be given the opportunity to hear the
statement and question the witnesses
• The accused employee shall be given all document and
statement to go through and shall be given opportunity to
question witnesses who produced such document and
statement
IS IT NECESSARY TO HOLD
DI?

It is mandatory for companies to conduct DI prior to the employee

being punished for a misconduct. The following two (2) situations
would justify the need to hold a DI:
Firstly, DI has to be conducted in compliance with Section 14(1) of
Employment Act 1955 (Dreamland Corp. (M) Sdn Bhd V Choong Chin
Sooi & Anor).
However should there be a willful breach by the employee of a condition of
the contract of service, such as refusing to perform duties, which are
agreed under the contract of service, a due inquiry need not be
conducted, Section 13 (2). To strengthen the case, and to proof the
breach it is still advisable to conduct a DI.
• Secondly, DI has always been looked at as a fair and
proper way to handle a disciplinary problem.
• It allows the employees the opportunity to defend
themselves in the presence of a neutral panel, and the
management to investigate the case further without
making hasty decisions.
• This second situation arises on the principle of Natural
Justice.
• It has to be noted that by conducting a DI and subsequently finding the
employee guilty of such charges, does not necessary lead to a
dismissal.
• The punishment administered has to be congruent to the gravity of
the misconduct.
• In the case of Theen Seng Paper Manufacturing Sdn Bhd vs
6 employees represented by Paper and Paper Products
• Manufacturing Employees Union, six employees were terminated for
being absent from work for a day.
• It was held that the punishment administered by the management of
Theen Seng Paper was too harsh and does not justify a termination of
service.
Composition in the Domestic
Inquiry
• Chairman Lead the DI and ensure the
proper procedure apply in DI
• Panel Members 2 or 4 to assist the
• Prosecutor Chairman Company
• Minute recorder “lawyer” in DI Secretary to
• Accuser DI
• Accuser Assistant Accused employee
• Witness Accuser lawyer or reps
Chairman and Panel’s
authority
• To delay the trial – need to record and allow only 2 times
• To defer the trial
• To determine number of witness
• To determine on relevant and not relevant for each question and
document provided to the case
• Trial procedure
• The attitude of any party during the trial
Domestic Inquiry
Procedure 1st step :
Introduction
• Chairman introduced all parties in DI
• Ask accuser if he had any reps or assistant. If yes, need
to be introduced
• Ask accuser if he had any question
• Explain the DI procedure to accuser
Step 2 : Beginning of
Inquiry

• Request Prosecutor to present alleged letter to panel members

• Chairman read the allegation
• Chairman shall ask the accuser his understanding of those allegation read to
him
• Accuser being asked on his stand or each allegation.
• If he admit guilty, the accuser need to be given a chance to explain how the
misconduct happened inclusive of reason and appeal for a lighter
punishment. In this case then, prosecutor will need to present the fact of the
case briefly.
• If the accuser deny the accusation, Chairmen will request the prosecutor to
present evident to verify the allegation.
Step 3 : Examine the
witness
• Company witness need to call first.
• Prosecutor will call the witness to support the case on behalf of
the company.
• Examine the witness: witness are required to provide information
related to the case or based on question asked by the prosecutor.
• Re-examine the comp witness by the accuser
• Re-examine the witness again by the prosecutor
Step 4 : Accuser Defend
himself
• The accuser and his witness will be called to present their
facts
• Follow the same process in step 3
Wrap-Up

• At the end of the trial both party need to wrap their

facts.
• No new facts are allowed to be presented during the
wrap-up session.
Step 5 : Panel
Decision
• Panel decision shall be in the form of report and stated the
detail explanation whether all allegation has been proven or
not.
• In the report should indicate that on whether it was a
collective decision whereby all panel agreed in such decision.
• Any panel who does not agreed need to provide explanation
on his stand.
DI
Notes
• All communication during the DI need to be recorded using Verbatim
methods – dialogue script
• Should be in sequence with event
• Any rephrasing on the sentences need to read out for agreement or
objection
• It should be clear and easy to read. Short hand are allowed to be
used.
• All evident and exhibit should be remarks with sequence number. If
photocopy being produced panel to verify the original copy.
• Finally the notes need to be signed by all parties
Why DI
Fails
• Poor Time Management
• No room provided
• Witness did not being informed early
• Proceed the Di without accuser
• Allegation did not being explain to the accuser
• Accuser did not being asked on his stand towards all the
allegations.
• Starting the trial by asking the accuser
• Prosecutor control the DI
• Exhibit or evident did not being recorded clearly
• Accuser did not being allowed to question the witnesses
• Accuser are not allow to bring witness
• Management had instructed the panel on the decision before the trial
• Panel are prejudice against the accuser
• Panel are having conflict of interest
• Panel make a decision without considering the facts
• The DI Notes has not being signed by all
parties involved.
When employer no
need to conduct DI
• Employee admit guilty after the show cause letter and
willing to resign
• The employee absconded
• The employee caught by the police and sentenced
Learning
Point..
• I hear, I forget
• I See, I remember
• I Do, I Understand