It is not uncommon for the requirement of a “due inquiry” to be discussed alongside in the context of a “domestic inquiry”. While the two concepts are related, they are not interchangeable.
The High Court decision in Flash Malaysia Express Sdn Bhd v Muhammad Firdaus bin Azmi clarified the distinction between due inquiry and domestic inquiry, and confirmed that where misconduct has been admitted, a domestic inquiry is not required, particularly in the context of cases before the Labour Court.
Brief Facts
The employee, a branch supervisor, was issued a show cause letter setting out three charges of misconduct, namely dishonesty, misuse of company property, and habitual late coming.
The employee denied the first two charges but admitted to the third charge of habitual lateness. The employer subsequently abandoned the disputed charges and dismissed the employee without notice, solely on the admitted misconduct. A domestic inquiry was not convened.
The employee brought a claim before the Labour Court for payment in lieu of notice and for termination benefits.
The Labour Court ruled in favour of the employee, holding that the absence of a domestic inquiry rendered the dismissal procedurally defective. The employer appealed to the High Court.
Court’s Findings
The High Court allowed the employer’s appeal and held that a domestic inquiry was not necessary in the circumstances.
Under section 14 of the Employment Act 1955, an employer may dismiss an employee for misconduct, without notice, after a “due inquiry”. The Court emphasised that “due inquiry” is a flexible requirement and does not invariably mandate a formal domestic inquiry.
Where an employee is informed of the allegation, given an opportunity to respond, and admits to the misconduct, there is no factual dispute requiring further inquiry. In such cases, the Court held that conducting a domestic inquiry would amount to an empty formality, as there is nothing further to inquire into.
Labour Court vs Industrial Court: Different Approaches
This case also illustrates the different approaches adopted by the Labour Court and the Industrial Court when dealing with disciplinary processes.
The Labour Court, which operates under the Employment Act 1955, generally adopts a more procedural and statutory lens. Where a dismissal gives rise to a claim before the Labour Court, the dispute often concerns contractual entitlements such as unpaid wages, payment in lieu of notice, or statutory termination benefits. In cases involving misconduct, the focus commonly turns on whether the employer has complied with the express requirement of a “due inquiry” under section 14 of the Employment Act 1955. As a result, significant emphasis is often placed on whether a domestic inquiry was conducted.
By contrast, in unfair dismissal claims, the Industrial Court examines whether the dismissal was carried out “with just cause and excuse”. As a court of equity and good conscience, the Industrial Court determines disputes based on the substantial merits of the case, without undue regard to technicalities or legal form. Consistent with this approach, the Industrial Court has long recognised that a domestic inquiry is not an end in itself. The failure to conduct a domestic inquiry prior to dismissal is therefore not fatal, as the omission is curable by the inquiry which the Industrial Court is statutorily mandated to undertake.
The High Court’s intervention in this case brings the Labour Court’s approach into closer alignment with established Industrial Court jurisprudence.
Key Takeaways
This decision provides useful clarification on an issue that frequently arises in misconduct cases:
- Due inquiry and domestic inquiry are distinct concepts.
- Where misconduct is admitted, a domestic inquiry is not mandatory.
- Employers should be mindful that the Labour Court and Industrial Court may approach disciplinary processes differently, but admissions of guilt remain a critical consideration across both forums.
For employers, the case underscores that while procedural fairness must always be observed, the law does not require rigid adherence to formalities that serve no substantive purpose where misconduct has been admitted.
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This article was written by Nalina Santhiran (Associate) from Donovan & Ho’s employment law & dispute resolution practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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