Domestic Inquiry Process:

How to Draft a Proper and

Valid Charge Sheet
Raja Vishnu Sivarajah ,
Consultant, IR Law Sdn Bhd

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 c h a r g e - s h e e t i s t h e c h a r t e r o f
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. 3

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]
4
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
Effect of an Improperly Drafted
Charge Sheet

Can be Fatal to Employer’s Case

• U nlike 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).

11

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. 13

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. 15

(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?) . 16
(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. 17

(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. 18
(B) Vague or general allegations to
be avoided

(B) Vague or general allegations should be

avoided such as ‘tidak bertanggung jawap,
‘lack of discipline’, ‘improper or
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.
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MINOR MISCONDUCT
includes but is not limited to the following:-

•  Habitual Late- •  Loitering during work

coming to work hours

•  Habitually Leaving •  Habitual smoking in

the workplace early restricted areas/
breach of company
code of conduct
•  Habitual
Absenteeism •  Constant Failure to
follow safety
procedure /breach of
•  Malingering and company policy
feigning illness
MAJOR MISCONDUCT
includes but is not limited to the following:-

•  Misappropriation of •  Breach of fiduciary

Company’s money or relationship
property
•  Theft/pilferage of •  Gambling in the company
Company’s money premises
property
•  Fraud, dishonesty or •  Gross negligence and
falsification neglect of duty
•  Cheating the Company •  Wilful damage of
•  Fighting with other Company’s property
employees or visitors
•  Assaulting another
•  Sleeping while on duty
employee or visitor •  Possession of illegal
•  Soliciting or accepting weapon
illegal gratification
•  Participation in illegal •  Drunk while on duty
strike
•  Wilful insubordination or
disobedience

(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.
On…(date)...at…(place)...at about
….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. 26

 
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.

• .
•  27

THANK YOU.
• 

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