Commonly, employer tends to presume that Industrial Court is in favour of their employee. It seems that the Industrial Court goes beyond the concept of justice and merely focus on the employees’ benefit rather than the employer. If we look closely on such assumption is wrong. As matter of fact, the duty of Industrial Court arises when the issue of dismissal of employee was done without just cause and excuse. When the case brought up by the employee to the attention of the Industrial Court, the court will determine as to whether such exercise is conducted justly. Before any action is taken, it’s not a prerequisite for Industrial Court to interfere into the business dealings of the company, since the rights to hire and fire belongs to the prerogative of the management. However, to what extent such rights are right? What are the precautions needs to be taken to protect and preserve the rights?
The basic source of an employer or employee’s rights and obligations is found in the contract of service or contract of employment. The basic source of employers’ rights would be the documents setting out the terms and conditions of employment. The right to dismiss an employee is the prerogative of the executive bodies of the employee’s workplace, but the dismissal must be done according to the legal process. If it is not just cause and excuse, employee can seek the Industrial Court for interference.
The “just cause and excuse” is very much dependent upon the element of reason. In the protection of employer’s business interests and reputation, there are 3 useful English approach on reasonable conduct. In British Home Store v Burchell 1978 IRLR 379, the 3 elements were stated as follows:
first of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.
Every employee has certain express or implied obligations towards his employer. Any conduct on the part of an employee which is proven by the employer to be inconsistent with the faithful discharge of his duties, or to be a breach of any express or implied obligation towards his employer, would constitute an act of misconduct. It could be an intentional deed of something which the doer knows to be wrong or it also could arise from his negligence or reckless in performing his duties without being concerned with the outcome. Section 14 of the Employment Act 1955 categorises misconduct according to 3 classifications.
A refusal to obey a lawful and reasonable order of the employer
An infringement of the employer�s disciplinary standard
Commission of criminal offences outside the place of work that in some way reflect the employer-employee relationship
The employer has to prove allegations of misconduct against an employee. In Rasa Sayang Hotel and National Union of Hotel Bar & Restaurant Workers (Awards 82 of 1982), the court held that:.
there is no denying the right to the employer to punish but there is also the right of the employee not to be punished if there has been no offence. Before the hotel can show that the punishment does fit the crime, it must first prove the crime.
The burden of proof lies with the employer. Employer must prove the workman guilty and it is not the workman who must prove himself not guilty.
It is also significant practice in workplace to inform and document out disciplinary rules so that the employer-employee’s relationship specified according to formal written standard. Such standard will automatically becomes an early warning, which explicitly state that any breach of disciplinary standard allows disciplinary action be taken.
The need for basic essential procedures of investigation in terms of misconduct are mainly for three reasons in particular. One, is to enable the employer to discover the relevant facts; two, to secure fairness; and three, to provide opportunity for any factors to be introduced which may mitigate the offence and affect the appropriate sanctions.
The concept of natural justice in Islam is concerns with a duty to act fairly and impartially. Thus, it is expected from an inferior tribunal that in the exercise of its judicial or quasi judicial functions it shall give prior and sufficient notice to the party affected to prepare his/her case adequately, to give him adequate opportunity to present his case and make available any information, evidence or material. The theory of ‘No Man Shall Be a Judge of His Own Cause’ (Nemo debet esse judex in propria cause); and ‘No Man is to be condemned unheard’ (Audi Alterem Partem) is applicable in Islamic judiciary since then. It is clearly stated in the Qur’an that one should appoint an intermediary for the purpose of dispute settlement and founded evidences prior decision in judgement.