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Domestic Inquiry Process:

How to Draft a Proper and

Valid Charge Sheet Raja Vishnu Sivarajah ,

Consultant, IR Law Sdn Bhd

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How to Draft a Proper and Valid

Charge Sheet

•  What is a Charge-Sheet?

•  Effect of an Improperly Drafted

Charge Sheet

•  Ingredients of a Proper and Valid

Charge Sheet

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How to Draft a Proper and Valid

Charge Sheet

O.P. Malhotra in 'The Law of Industrial Disputes', Volume II, 4th. Edition;

•  a charge-sheet is the charter of disciplinary action. Must be in writing and

must specifically set out the relevant

particulars or material particulars; for example the date, time and place the offences were alleged to have been committed.

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What is a Charge-Sheet?

•  Specific allegations (either in a show cause letter or notice to attend domestic inquiry) to

inform the accused of the alleged acts of

misconduct.

•  The object being to give the employee the

exact idea of the alleged misconduct

committed by him so that he may submit his explanation in his defence. Esso Production

Malaysia Inc. v. Maimunah Ahmad & Anor. [2002]

3 CLJ 242.

Burden & Standard of Proof in

employment law

•  The onus is on the employer to prove the case

against the accused

•  In doing so and even if the charge is criminal in

nature, the employer must satisfy the inquiry/

court, on a balance of probabilities, that the accused committed the misconduct accused of.

TELEKOM MALAYSIA KAWASAN UTARA V. KRISHNAN KUTTY SANGUNI NAIR & ANOR [2002] 3 CLJ 314 [Court of Appeal]

Law On Inquiry Process: Rules of

Natural Justice

•  Meaning :-

– The Rules of Natural Justice are the

minimum standards of fair decision-making

imposed on persons or bodies acting in a

judicial capacity

– It may be summed up as:

No man shall be condemned unheard.

Two Basic Rules: Rules of

Natural Justice

B Surinder Singh Kanda v. The Government Of The Federation Of Malaya [1962] 1 LNS 14

Nemo Judex In Causa Sua (no man shall be judging his own cause),

Audi Alterem Partem (hear the other side)

Two Basic Rules: Rules of

Natural Justice

Nemo Judex In Causa Sua (no man shall be judging his own cause)

–  No man must sit in judgement in a matter in which he has

either an interest or is biased

Audi Alterem Partem (hear the other side) –  The parties must be given a fair hearing

–  What constitutes “Fair Hearing”? •  Prior Notice

– Full facts of the case should be clearly stated in

Charge Sheet : Esso Production Malaysia Inc. v.

Maimunah Ahmad & Anor. [2002] 3 CLJ 242

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Effect of an Improperly Drafted

Charge Sheet

Can be Fatal to Employer’s Case

• Unlike a domestic inquiry where if the

employer makes a mistake, ie defective

inquiry, the case is not fatal to the employer

as it is only an irregularity curable by a de novo (rehearing) proceedings before and by the Industrial Court. (Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. [1995] 3 CLJ 344)

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Effect of an Improperly Drafted

Charge Sheet (Cont’d)

Can be Fatal to Employer’s Case (Cont’d)

• But, if the charges are imprecise or indefinite, the

person charged would not be able to understand them

and defend himself effectively, which is in breach of the principles of natural justice: Esso Production Malaysia Inc. v. Maimunah Ahmad & Anor. [2002] 3

CLJ 242. & Dorsett Regency (M) Sdn. Bhd. v. Azham Shah Mohamad Yusof & Anor. [2006] 5 CLJ 82.

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Effect of an Improperly Drafted

Charge Sheet (Cont’d)

Can be Fatal to Employer’s Case

• Therefore, failure to properly draft the charge

against the accused employee or a vague and

defective charge may prove fatal to the employer in his case against the accused employee (case could be decided in favour of claimant).

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Case Example of Improperly

Drafted Charge Sheet

Pos Malaysia Bhd. v. Zawiah Abdul Rahman; Award

No. 142/2008.

• Claimant was employed as a ‘Pegawai Kerani Pos’ in

the company. An audit determined there was a

shortage of stamp stock valued at RM17,840.75 at the

counter managed by the claimant. Claimant found

guilty after a DI, and dismissed from service. The charge was for committing misconduct of ‘tidak bertanggungjawab’ and ‘tidak jujur’ under the Hand-

Book of the company.

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Case Example of Improperly

Drafted Charge Sheet (Cont’d)

Pos Malaysia Bhd. v. Zawiah Abdul Rahman; Award

No. 142/2008.

• Industrial Court held that the company had failed to

draft a proper charge. The charge was vague and defective. Charge did not state that the claimant had

caused a wrongful loss to the company and a

wrongful gain to herself or to another. Moreover, the company did not produce evidence to support the

allegation of 'dishonesty' against the claimant as no proper investigation was carried out. Dismissal was

without just cause or excuse.

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Ingredients of a Proper and Valid Charge Sheet

(A) Material Particulars of Charge

(B) Vague or general allegations to be avoided

(C) Each misconduct stated as separate

Charge

(D) Previous offences/record to be referred in

Charge Sheet

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Ingredients of a Proper and Valid Charge Sheet

(A) Material Particulars of Charge

• Time, date, place, specific category or description of the misconduct (‘theft’ or ‘sexual harassment’ for

example)

• as well as identity of the accused and accomplice (if any) and

• specifics of the loss or value of any property, particulars of victims and description of incident (in

cases of sexual harassment or violence at work for

example) or ‘money trail’ for fraudulent transactions

are instances of material particulars that ought to be

stated.

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(A) Material Particulars of Charge

(Cont’d)

Case example of lack of material particulars (Esso Production (M) Inc. v. Maimunah Ahmad & Anor; Court Of Appeal)

• 1. That you received $400.00 from Aladdin bin Mohd. Hashim (no date, time and place of offences) knowing that this sum was part of the money received from Company's contractors, Oilfield Resources Sdn. Bhd. or its representatives in return for assistance rendered in relation to payment of that contractor's invoice in contravention of the Company's Gift and Entertainment Policy and the Conflict of Interest Policy.

• 2. That you concealed and failed to disclose to the Company's Management, the existence of irregular business practices and/or violation by employee and/or yourself, of the above-mentioned Company's policies (no description of offence and which specific part of policy?) .

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(A) Material Particulars of Charge

(Cont’d)

Case example of lack of material particulars ( Lim Pin Yeong v. Sunrider International (Malaysia) Sdn Bhd [2014] MELRU – relating

to sexual harassment)

Charge 2

"Between January to July 2005 at the Claimant house in Bukit Jalil, the claimant made indecent suggestion to Ms. Ng Lay Cheng and

tried to hold her against her will”

Industrial Court Held:

Applying the principles in Esso Production the charge failed to state material particulars such as the specific date and time as well as the nature of "indecent suggestion". In addition to that there was no police report and

total lack of corroborative evidence to support the alleged offence by the

claimant.

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(A) Material Particulars of Charge

(Cont’d)

Lim Pin Yeong v. Sunrider International (Malaysia) Sdn Bhd [2014]

MELRU – relating to sexual harassment)

Charge 4

"That since middle 2006, you have been treating Ms. Ng Lay Cheng in a very unreasonable manner by reprimanding her with belittling words, not

providing her with work which commensurate with her capacity and

finding fault with her for no justifiable reason.“

Industrial Court Held:

(i) The alleged treatment of Ms. Ng Lay Cheng in a very "unreasonable

manner by reprimanding her with belittling words" was not accompanied with material particulars eg. what were those "belittling words"? (ii) The

allegation of "not providing her with work which commensurate with her

capacity" was rather vague.

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(B) Vague or general allegations to be avoided

(B) Vague or general allegations should be

avoided such as ‘tidak bertanggung jawap, ‘ l a c k o f d i s c i p l i n e ’ , ‘ i m p r o p e r o r inappropriate behaviour’ etc (Pos Malaysia Bhd. v. Zawiah Abdul Rahman). Specific

terminologies for misconduct preferably

recognized from Industrial Court cases, company policy on disciplinary procedure, or even Penal Code to be used as reference/guidance to frame a valid Charge.

 

MINOR MISCONDUCT includes but is not limited to the following:-

•  Habitual Late-

coming to work

•  Habitually Leaving

the workplace early

•  Habitual

Absenteeism

•  Malingering and

feigning illness

•  Loitering during work hours

•  Habitual smoking in restricted areas/breach of company code of conduct

•  Constant Failure to follow safety procedure /breach of company policy

MAJOR MISCONDUCT includes but is not limited to the following:-

•  Misappropriation of Company’s money or property

•  Theft/pilferage of Company’s money property

•  Fraud, dishonesty or falsification

•  Cheating the Company

•  Fighting with other employees or visitors

•  Assaulting another employee or visitor

•  Soliciting or accepting illegal gratification

•  Participation in illegal strike

•  Wilful insubordination or disobedience

•  Breach of fiduciary

relationship

•  Gambling in the company

premises

•  Gross negligence and neglect of duty

•  Wilful damage of

Company’s property

•  Sleeping while on duty

•  Possession of illegal weapon

•  Drunk while on duty

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(C) Each misconduct stated as

separate Charge

(C) Each incident or act of misconduct is to be

stated as a separate charge.

•  Example, if accused employee committed two

acts of misconduct, then both acts to be

stated separately for ease of reference in the

charge sheet.

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(D) Previous offence/record to be

referred in Charge Sheet

(D) When the accused has a previous record,

then to exemplify that the accused is a repeat/

habitual offender, the previous show cause,

warning letters etc can be stated (however, not

forming part of the Charges), as below:

Exm:

We refer to our previous show cause letters

dated…, warning letters dated….and to the

Charges below……

• 

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Sample Charges

Theft

On...(date)...at…(place)...at about ….(time) you…

name of accused)…stole…(describe property)…

lying at ………..(place)…..belonging to the company

and moved it dishonestly out of the department and/

or gate of the company. Thus, you are charged with

stealing the property belonging to the company thus

causing wrongful loss to the company and a

wrongful gain to yourself.

• 

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Sample Charges

Threat

(b) …...(state name of superior)…is holding the post

of …(state name of post)…and is your superior.

O n … ( d a t e ) . . . a t … ( p l a c e ) . . . a t a b o u t

….time….. ...you…(state name of accused

employee …approached him with a request…(state

request)… . When the request was not granted you

became enraged and threatened him by saying…

(state threatening words)… .

• 

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Sample Charges

Forgery

(c) At the time of your appointment you, ...(state

name of accused employee)...were required to

submit your certificate/s showing your educational

qualifications as well as certificates from the

previous employer/s. On...(date)...at…(place)...at

about…(time)…you produced the certificates in

which they appeared to be tampered with and

instead of the correct facts such as ...(state facts)...

the said certificates read as under... (state forged

facts). You are, therefore, guilty of dishonesty

falsifying the said document/s.

 

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Sample Charges

Misappropriation Of Company’s Funds

(d) On...(date)...at…(place)...at about…(time)…

you…(name of accused employee)...collected...

(state amount misappropriated in RM)…from...(state

name of depositor of monies/funds)...but did not

deposit the same with the company and hence, you

have dishonestly misappropriated the said amount.

• .

• 

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THANK YOU. •