Abstract
It seemed to be a settled principle of law that before an employee can be dismissed from his job for misconduct, he must have a notice of the allegation against him and accorded a reasonable opportunity of being heard. However, this principle should be revisited in the light of two conflicting Federal Court’s decisions pertaining to the mandatory issue of this right especially in the private sector employment in Malaysia. The curable principle as enunciated by Dreamland Corporation (M) Sdn. Bhd. v Choong Chin Sooi & Anor [1988] 1 MLJ 111 has watered down the right of the employee to be heard as it was held in that case that the irregularity in holding a domestic enquiry is not fatal to the employer. He may justify the dismissal at the Industrial Court. Despite the existence of this principle, it should be emphasised that the right to a pre-dismissal hearing should be interpreted to be mandatory and not discretionary as there are two statutory provisions and constitutionally recognised rules of natural justice which may support this proposition. The mandatory effect of the domestic enquiry should be consistently upheld. With a view to enhance the employee’s right and to ensure harmonious employer-employee relationship, it would be the purpose of this article to comparatively examine and learn how the same right is treated and regulated under the Islamic principle of justice and its application in two Islamic countries, namely Kingdom of Saudi Arabia and the UAE. Apart from narrowing down the gap in the Islamic knowledge on the administration of justice in dismissal cases, this article may also contribute in idea on how to harmonise the current employment laws and the Sharia.
Highlights
The right to be heard or audi alteram partem is a principle of natural justice that no man should be condemned unheard or both sides to a dispute must be heard
This may mean that even if there is no statutory provision to impose the giving of the right to be heard to an employee accused of a certain misconduct, under the doctrine of procedural fairness2 the right must be observed during domestic enquiries in the private sector and in disciplinary proceedings in the public sector before an employee is penalised
Kingdom of Saudi Arabia (KSA) and the United Arab Emirates (UAE) have clear statutory provisions indicating the right to be heard as a mandatory right in both the private and the public sector employment whereas in Malaysia, only the public service sector has a clear statutory provision guaranteeing the right
Summary
The right to be heard or audi alteram partem is a principle of natural justice that no man should be condemned unheard or both sides to a dispute must be heard. Despite what seems to be the above commonly held view, the issue of whether or not the holding of a domestic enquiry to give an employee the right to be heard is mandatory or not is still unsettled in Malaysia, in the private sector employment. This is due to the two contradictory Federal Court’s cases deciding on this matter. Based on the Sharia law, the employee’s pre-dismissal right to be heard is mandatory except where there is an admission of guilt on the part of the employee This mandatory effect is clearly stipulated in the statutory provisions of the Islamic countries selected. As amendments to the relevant laws are time consuming, another separate research on the practicality of harmonising the current labour laws and Sharia by interpretation in accordance to the Islamic concept of Siyasah Syar’iyyah and Maslahah may be required to enhance the employees’ pre-dismissal right
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