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Basics relating to Domestic Inquiries
Human Resources » Industrial Law & Discipline


Chrm Message From: madure Total Posts: 261 Join Date: 06/06/2006
Rank: Coach Post Date: 02/07/2006 21:01:30 Points: 1355 Location: Sri Lanka



THE Domestic Inquiry  is an investigation exercise conducted by the management to establish full facts of an indisciplinary act committed by an employee; the facts also include the circumstances leading to the committal of the said act of indiscipline and recommended punishment.

The purpose of the domestic inquiry is to assist management to determine whether or not
1. an act of indiscipline has been committed;
2. if so, the inquiry has to assess and evaluate the gravity of the offence; and
3. recommend to the management the appropriate punishment as spelt out in the:
a) office/factory rules and regulations; or
b) collective agreement; or
c) contract of service; or
d) by law - in force at the time of the committal of the act of indiscipline. In any case the punishment recommended should be just and fair and should not be biased and/or capricious.

In many Asian countries through negotiations with employers in the private sector , procedures have been introduced which included a provision allowing an employer a party to the agreement to suspend an employee on the grounds of misconduct, inefficiency, indiscipline, or for contravention of any other conditions of service or rules and practices of the employer and the employee shall be informed by written notice of such suspension.

The standard procedure state clearly that an employer may, after due injury:
(a) dismiss without notice a labourer employed by him on the grounds of misconduct inconsistent with the fulfillment of the express or implied conditions of his service; or
(b) down-grade the labourer; or
(c) suspend him from work without payment of wages for a period not exceeding one week. It may also impose any other lesser punishment as he deems just and fit, and where the punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.

Suspension And Wages

There are two types of suspension, namely: An employer may suspend an employee;
1. for a period not exceeding two weeks for the purpose of investigation into the allegation of the indiscipline committed by the employee during which time the employee concerned shall be paid not less than half his wages; and if the inquiry does not disclose any misconduct on the part of the employee to the employer shall forthwith restore to the employee the full amount of wages so withheld and reinstate him to his former position without any loss in service and benefits.
2. as a disciplinary measure not exceeding two weeks without wages.
What Is Meant By Due Injury
There are many versions - it is simply where an employee having been specifically charged with the committing of a certain act or acts of misconduct is given an opportunity to answer the charges preferred against him.

Even though there are no set rules to show a uniform procedure for holding an inquiry the following guidelines may be useful to observe:
• the Inquiry is to be instituted as early as possible after the suspension of the employee;
• the employee concerned is to be given particulars of the allegations/misconduct in writing and such particulars shall be precise and unambiguous;
• a reasonable time be given before the inquiry to enable the employee to consult and prepare his case;
• at the Inquiry, the employee be allowed to be assisted by his union representative if a union does exist in the establishment;
• the Inquiry at all levels should be conducted impartially and therefore it shall be conducted by a person or persons not directly connected with the investigation;
• the complainant whose action prompted or resulted in the Inquiry should start the case to answer and therefore he should also be the employer's witness giving evidence;
• witness giving evidence at the Inquiry shall do so in the presence of the accused employee and the employer;
• those who gave statements during management investigation which helped management to frame charges should repeat their statements at the Inquiry and in presence of the accused employee;
• all witnesses who gave evidence shall be "offered" for cross examination;
• the Inquiry Officer/s should record notes of the proceedings in the form of questions and answers and ensure the recordings are factual statements that were made - it would be in the interest of all concerned if the statements are read as recorded so that all parties are given the opportunity to have identical recordings; this will prevent accusation of unfairness and/or being biased.
• the Inquiry Officer/s' decisions and recommendations shall be based on recorded notes and that is the conclusion of the Inquiry conducted by him, personal opinions must be avoided;
It must be noted that the employer can only justify the disciplinary action he takes against the employee:
• on the grounds contained in the charge sheet and
• the conclusions of the inquiry
It must be further noted that past offences which were not part of the Inquiry should not be considered when handing out the punishment as they have been either condoned or forgiven unless such forgiveness has been conditional.

Who Should Conduct The inquiry

Here again, there is no hard and fast rule on this.It could be held by a person or persons - the saying "more brains are better than one" is risky and would adversely affect the interests of both parties. The important point to note is that the Inquiry should be conducted by a person or persons who:
• were not directly connected with the investigations into the allegations,
• had no prior knowledge of the allegations,
• had not discussed the actual issue with anyone,
• should not be made to feel that he is under obligation to give a decisions in favour of his employer
• above all the employee should not feel or be given room to feel that he is being adjudged upon by someone who has already formed a bias view against him, including a personal grudge,
• depending upon the status of the employee, it would be advisable to engage an experienced outsider who had no prior relationship with the employer and will have none after the Inquiry; he is appointed to hold the Inquiry in a fair and just manner without fear or favour.
Natural Justice
An iquiryI will not be in conformity with the rules of natural justice if:
• the charges are vague;
• the employee was not told what wrong he had committed;
• he was not made to understand the nature and circumstances of the wrong committed by him;
• the full particulars of the charges are not disclosed to him; and
• he was not given a reasonable opportunity to reply to the charges.

In certain countries there is no legal obligation to hold a disciplinary inquiry before dismissal – however the failure to hold an inquiry may be construed as evidence to show the lack of impartiality and fairness on the part of the employer, which may go in favour of the accused.

Prof.Lakshman Madurasinghe

Chrm Message From: vikmod Total Posts: 1 Join Date: 06/06/2006  
Rank: Beginner Post Date: 07/07/2006 22:13:46 Points: 5 Location: Sri Lanka
Dear Prof. Madurasinghe,

I was very impressed by your postings. I seek your guidance on the books / sites which I should refer for Disciplinary actions / procedures and Industrial Relations Laws...

Regards
Chrm Message From: madure Total Posts: 261 Join Date: 06/06/2006  
Rank: Coach Post Date: 08/07/2006 05:31:11 Points: 1355 Location: Sri Lanka

Dear Vikmod,

If you could please visit my site http://lmadurasinghe.googlepages.com

and check for Law pages, you will find a number of resources listed there  for you.

Hope they will be of some use.

Prof.Lakshman

 

Chrm Message From: kannan_hrd Total Posts: 24 Join Date: 06/06/2006  
Rank: Executive Post Date: 25/12/2006 23:43:28 Points: 120 Location: Sri Lanka

 

 

Dear Prof.Madurasinghe,

Hello!!

I would like to have your guidance in the following matter. One of our employee have left our company without any notice by breaking his service agreement. He has switch off his mobile for the last one week. We know that he has joined another company.

First, we have to find out the company in which he has joined. Then we need to take any legal action against. him.

Please guide me in what way we may handle this situation.

Regards

Krishnan

 

 

 

 

 

Chrm Message From: sumit_hr Total Posts: 25 Join Date: 06/06/2006  
Rank: Executive Post Date: 26/12/2006 07:11:14 Points: 125 Location: Sri Lanka

Krishnan,

If the employee has left without giving a notice period, that is a serious issue since he is also bound by a service agreement (bond). You need to find out the real cause of his absence :

- whether he has joined other co.
- or there seems to be some oter case.

Try to touch base with him through email/phone/snail mail to be aware of the primary reason before taking any serious step. Once the contact is successful, he should be called to the office for further discussions. Until then, no legal action can be taken since you aren't sure about the main cause.

If the situation cannot be prevented (after meeting), then probably action can be taken against the employee / the company (who also employed the candidate without asking for a relieving letter and without knowing the fact that he is still employed on other company's rolls)

Hope this helps ; )

Sumit

 


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