A tool to ensure natural justice
Friday, 17 October 2008
Mohammad Murshedul Huda Sharifi
WHEN the question of dismissing an employee (for any misconduct), arises in an Industrial Establishment, it warrants conducting of a Domestic Inquiry. Domestic Inquiry is expedient for the employer who wants to be fair, but firm in enforcing proper discipline in his work place. Employer organisations, especially those without proper Human Resource Department, naturally handle disciplinary issues in ways they think best. Their actions have been challenged and the Labour Court has handed over numerous decisions on the necessity of holding "Domestic Inquiry". The "Procedural Fairness" while taking disciplinary action, against an employee may often be a crucial factor in deciding whether the dismissal will be upheld by the court. It is imperative to recognize that upholding a dismissal in the court involves satisfying two criteria:
a) That there were proper grounds for terminating the employee;
b) That the procedure by which the employee was terminated was fair.
Major mistakes on the part of the employer take place in relation to court decisions on this subject. The reasons are:
Employers fail to conduct Domestic Inquiry, or the Domestic Inquiry so conducted does not fulfil the requirements of Natural Justice, and end up reinstating the employee without loss in wages or paying a hefty compensation in lieu of reinstatement.
In order for a domestic inquiry to be properly held, certain procedures need to be followed as outlined below:
Serve the employee alleged to have committed misconduct with a letter containing:
Specific charge about the type of offence, the date, the time and place where the offence took place. Also state which rules regarding the company's rules or regulations have been violated.
The date, the time and the place where he has to be present for the inquiry.
Inform him of his right to bring along witness, if any.
If necessary, suspend him for 1/2 week pending an inquiry and the total period of such suspension shall not be more than sixty days. Provided that during the period of such suspension, a worker shall be entitled to a subsistence allowance equivalent to half of his average wages, dearness allowance and ad-hoc or interim wages, if any. [BLL 2006 Sec. 24(2)]
Panel of Inquiry: There is no hard and fast rules relating to how many persons should be on the panel. Usually, there are three but one person can himself conduct the inquiry. When the enquiry begins the following personnel should be in the room:
1. Panel of Inquiry/ Inquiry officer
2. Defendant/Defendant's union representative, if he is a union member
3. Prosecutor: A proper inquiry should be presided over by an impartial person, as far as possible from managerial level, who knows little or nothing about the case. The superior of the defendant should not be a member of the Panel because he is obviously prejudiced. The panel of Inquiry or the inquiry officer (only one person should conduct the inquiry) must be unbiased. If any member is prejudiced in anyway regarding the employee he should be excluded from the panel of inquiry. Whether a "Prosecuting" Officer may or may not be used, it depends on whether the Company's Panel Members are well-versed in the procedure. If the Panel Members are experienced, the 'Prosecuting" Officer' then becomes the Chairman of the Panel Members in which case it is important that his approach is modified to questioning with a view to obtaining facts, and not finding the defendant guilty.
In the hearing, the prosecution will begin first. He is to make out a case against the accused first by producing witnesses, who have direct knowledge of case;
The accused i.e. the employee alleged to have committed the offence, is allowed to question (cross-examine) each of the witnesses on the evidence they have given;
After that the accused will be asked to enter his defence i.e. to tell his side of the story;
The accused may produce witness or witnesses to support what he has said;
The accused as well as his witnesses are subject to cross examination by the prosecutor.
The chairman will guide the proceeding and record the evidence in writing;
It is preferable to record the minutes word for word. For this a secretary or a tape recorder can be used.
As this is Domestic Inquiry, outside legal help should not be allowed, which means, the proceedings should be considered as an internal matter.
The minutes of the Domestic Inquiry should be signed by the defendant as a true record of the transactions.
After the hearing: The panel will discuss the hearing and study the evidence given by both parties. The chairman will submit the panel's findings and recommendations to the management and Management's decision is either to: (a) Dismiss the employee without notice or pay in lieu thereof; or,
(b) Impose any other lesser punishment as he deems just and fit as per the section 23(2), and where a punishment of suspension [23(2) f] without wages and without subsistence allowance is imposed, it shall not exceed a period of one week.
If these procedures and guidelines are adhered to, an employer should be well on his way to being able to defend successfully an unfair dismissal complaint in the labour court. By this means the principle of natural justice will also be ensured.
The writer is an HRM activist. He may be reached at email: murshedul_huda@yahoo.com
WHEN the question of dismissing an employee (for any misconduct), arises in an Industrial Establishment, it warrants conducting of a Domestic Inquiry. Domestic Inquiry is expedient for the employer who wants to be fair, but firm in enforcing proper discipline in his work place. Employer organisations, especially those without proper Human Resource Department, naturally handle disciplinary issues in ways they think best. Their actions have been challenged and the Labour Court has handed over numerous decisions on the necessity of holding "Domestic Inquiry". The "Procedural Fairness" while taking disciplinary action, against an employee may often be a crucial factor in deciding whether the dismissal will be upheld by the court. It is imperative to recognize that upholding a dismissal in the court involves satisfying two criteria:
a) That there were proper grounds for terminating the employee;
b) That the procedure by which the employee was terminated was fair.
Major mistakes on the part of the employer take place in relation to court decisions on this subject. The reasons are:
Employers fail to conduct Domestic Inquiry, or the Domestic Inquiry so conducted does not fulfil the requirements of Natural Justice, and end up reinstating the employee without loss in wages or paying a hefty compensation in lieu of reinstatement.
In order for a domestic inquiry to be properly held, certain procedures need to be followed as outlined below:
Serve the employee alleged to have committed misconduct with a letter containing:
Specific charge about the type of offence, the date, the time and place where the offence took place. Also state which rules regarding the company's rules or regulations have been violated.
The date, the time and the place where he has to be present for the inquiry.
Inform him of his right to bring along witness, if any.
If necessary, suspend him for 1/2 week pending an inquiry and the total period of such suspension shall not be more than sixty days. Provided that during the period of such suspension, a worker shall be entitled to a subsistence allowance equivalent to half of his average wages, dearness allowance and ad-hoc or interim wages, if any. [BLL 2006 Sec. 24(2)]
Panel of Inquiry: There is no hard and fast rules relating to how many persons should be on the panel. Usually, there are three but one person can himself conduct the inquiry. When the enquiry begins the following personnel should be in the room:
1. Panel of Inquiry/ Inquiry officer
2. Defendant/Defendant's union representative, if he is a union member
3. Prosecutor: A proper inquiry should be presided over by an impartial person, as far as possible from managerial level, who knows little or nothing about the case. The superior of the defendant should not be a member of the Panel because he is obviously prejudiced. The panel of Inquiry or the inquiry officer (only one person should conduct the inquiry) must be unbiased. If any member is prejudiced in anyway regarding the employee he should be excluded from the panel of inquiry. Whether a "Prosecuting" Officer may or may not be used, it depends on whether the Company's Panel Members are well-versed in the procedure. If the Panel Members are experienced, the 'Prosecuting" Officer' then becomes the Chairman of the Panel Members in which case it is important that his approach is modified to questioning with a view to obtaining facts, and not finding the defendant guilty.
In the hearing, the prosecution will begin first. He is to make out a case against the accused first by producing witnesses, who have direct knowledge of case;
The accused i.e. the employee alleged to have committed the offence, is allowed to question (cross-examine) each of the witnesses on the evidence they have given;
After that the accused will be asked to enter his defence i.e. to tell his side of the story;
The accused may produce witness or witnesses to support what he has said;
The accused as well as his witnesses are subject to cross examination by the prosecutor.
The chairman will guide the proceeding and record the evidence in writing;
It is preferable to record the minutes word for word. For this a secretary or a tape recorder can be used.
As this is Domestic Inquiry, outside legal help should not be allowed, which means, the proceedings should be considered as an internal matter.
The minutes of the Domestic Inquiry should be signed by the defendant as a true record of the transactions.
After the hearing: The panel will discuss the hearing and study the evidence given by both parties. The chairman will submit the panel's findings and recommendations to the management and Management's decision is either to: (a) Dismiss the employee without notice or pay in lieu thereof; or,
(b) Impose any other lesser punishment as he deems just and fit as per the section 23(2), and where a punishment of suspension [23(2) f] without wages and without subsistence allowance is imposed, it shall not exceed a period of one week.
If these procedures and guidelines are adhered to, an employer should be well on his way to being able to defend successfully an unfair dismissal complaint in the labour court. By this means the principle of natural justice will also be ensured.
The writer is an HRM activist. He may be reached at email: murshedul_huda@yahoo.com