FAULT FREE SHOW CAUSE LETTER

UNIVERSITI TEKNOLOGI MARA

DRAFTING
THE FAULT
FREE SHOW

CAUSE
LETTER

SHAIRA ISMAIL



LEARNING

OUTCOMES

1. Apply the standard
rules of writing a legal
document

2. Draft the Show
Cause letter effectively
and accurately

PRESENTATION
OUTLINE

1 MALAYSIAN EMPLOYMENT

LAWS - AN INTRODUCTION

2 SHOW CAUSE LETTER
3 FACT FINDING INVESTIGATION
4 TECHNICAL WRITING SKILLS

5 CONCLUSION

In Malaysia, employer-employee relationships are governed by the
Labour Relations Act (IRA) 1967 and the Employment Act 1955.
Section 20 of the Industrial Relations Act 1967 permits an employee to
lodge a representation to the Director General of Industrial Relations
within 60 days from the date of his termination for unfair dismissal
without just cause or excuse by his employer.

The Industrial Relations Department (IR Department) will hold
reconciliation sessions for settlement where both parties (employee and
employer) are required to attend the sessions. The session is mediated
by the IR Dept. Officer. If both parties are able to make an amicable
settlement, the matter ends here.

If the conciliation session is not able to resolve the disputes, the IR
Dept will notify and refer the matter to the Minister of Human
Resources. Based on the IR Dept's reference, the Minister of Human
Resources will then consider and decide whether the representation is
fit to be referred to the Industrial Court for determination.

The employment law in the private sector in Malaysia is mainly
provided in the Employment Act 1955 (“the EA”), among others
sources of law, which shall be applicable in the Peninsular Malaysia
and the Federal Territory of Labuan.

The employment law in the private sector in Malaysia is mainly provided in
the Employment Act 1955 (“the EA”), among others sources of law, which
shall be applicable in the Peninsular Malaysia and the Federal Territory of
Labuan.
The sources of employment law in Malaysia are basically found in:-
(a) the statutes, being the Parliament made law or an Act of Parliament (i.e.
Industrial Relation Act 1967; Children and Young Person (Employment) Act
1966; Employees Provident Fund Act 1991; Employees Social Security Act
1969 & etc.
(b) subsidiary legislation, being the ministerial orders or regulations made
under the relevant empowering statutes (i.e. Employment (Part-time
Employees) Regulations 2010 and Minimum Wages Order 2016)
(c) case laws refer to such judicial precedents found in the law reports for
future similar cases to be treated alike.

It is also worth pointing out that aside from the mechanism under the
IRA 1967, aggrieved employees may also opt to file a civil claim against
their employers for breach of contract and/or unlawful termination.
In order for employers to successfully defend an unfair dismissal claim
under the IRA 1967, employers will have to prove that the dismissal is
“with just cause and excuse”. The Industrial Court determines dismissal
cases on the substantial merits without regard to technicalities and
legal form.
Generally, the principle of “just cause and excuse” means that the
employer must have proper justification and reasons to terminate the
employee

The Industrial Court takes into account “procedural
fairness”. The employer may have good grounds for
dismissal but still lose the unfair dismissal case because the
dismissal was procedurally unfair or against the rules of
natural justice.

Procedural fairness is a legal principle that ensures fair
decision making. The elements of the procedural fairness
are processing without undue delay; the right to fair and
impartial decision-making; the applicant's right to be
heard; Whoever hears must decide; legitimate expectation
& the right to reasons.

Procedural fairness requires that applicants:

be provided with a fair and unbiased assessment of their
application

be informed of the decision-maker’s concerns and have a
meaningful opportunity to provide a response to concerns about
their application

An employer who does not carry out the groundwork before
termination may end up paying a large amount of settlement the
dismissed employee in order to avoid more significant liability.

UNFAIR DISMISSAL CASES Employees are getting more
knowledgeable about their rights, with
The unfair dismissal has been the readiness to institute litigation
increased rapidly. There were against any act that breaches job
1,226 cases reported to the Court practices undersigned by them and
in 2016 amounting to their employers.
RM21,841,008 awarded against
firms. In excess of RM243 million Thus, employers should take extra
(between 2014-2018) has been precautions to ensure the “fault-free”
awarded back wages and execution of the dismissal cases
compensation by the Industrial specifically on the technicality issues
Court. and takes into account the
“procedural fairness”. It means that
It has been recorded that, eight out employers must first satisfy certain
of every ten cases received by the legal requirements before terminating
Industrial Court in Malaysia are an employee
related to the wrongful dismissals.

Sources: MOHR and MEF reports.



DRAFTING LEGAL DOCUMENT

Complexity in legal drafting is often caused by word choice and
sentence structure, not by the complexity of the subject‐matter.
To write effectively, ambiguous words should be avoided.
Writing should be clear and direct
Use more precise language to express point.
Legal terms should only be used to explain a technical term or
point
Meaning is not lost within a jumble of legal jargon
Ensure that each word contributes to the overall objective and
structure of your writing
Ensure clear and concise language in your legal documents
Practice your skill at identifying ambiguity and making proper
word choices

DRAFTING LEGAL WRITING

The consequences of bad writing skills lead to a failure to facilitate the
outcome that we anticipate as well failure to present an idea effectively
Thus, legal writing should be as concise as possible without losing
meaning
Need to be simplified in writing the technical concepts
Use of uncommon legal words, avoid Latin words
Write in a plain legal English means choosing words that convey the
appropriate legal meaning but that do so without confusing the reader
Use shorter sentences ; keep sentences to a reasonable length

SHOW CAUSE LETTER, A DEFINITION

A ‘show cause letter’ is issued by an employer to an
employee in the course of a disciplinary process. It
asks the employee to provide an explanation (or
‘show cause’) why they should not face disciplinary
action issue – whether about conduct or capacity –
in the workplace.

SHOW CAUSE LETTER, A DEFINITION

A show cause letter is a formal document
issued during a disciplinary process. It
describes the details of an alleged offence or
misconduct and asks the accused employee
to explain why disciplinary action should
not be taken against them.

SHOW CAUSE LETTER, A DEFINITION

The show cause notice or letter is used to get an explanation
from the accused employee when he or she is committing a
misconduct, a violation of a rule and regulation before
initiating any disciplinary action.

If an employee is committed a mistake, his employer can
issue a show-cause notice to him asking as, “ Show cause
why should not be initiated the disciplinary action against
your misconduct”. The notice should accompany the details
of misconduct and proofs thereto.

REASONS FOR SHOW
CAUSE LETTER

REASONS FOR SHOW CAUSE LETTER

Violating Company Policies
Misuse of authority, power or designation
Harrassment
Physical or emotional abuse
Workplace violence or threatened workplace

REASONS FOR SHOW CAUSE NOTICE

Fraud or misrepresentation of personnel
documents;
Theft of property;
Misuse of company’s property (e.g., vehicles,
computers, maintenance equipment);
Accidents, Safety Violations;

REASONS FOR SHOW CAUSE NOTICE

Inappropriate behavior/language in the
workplace;
Repeated absenteeism, tardiness, or any
unexcused absences;
Repeated bad performance or behavior issue
Drugs and alcohol & etc.

WHY SHOW CAUSE LETTER MATTERS?

Fundamentally, it is about fairness. Not allowing
someone to give their side of the story or put their
explanation forward can be unfair. Given such
opportunities, the employees may challenge the decision
to dismiss them by providing justifications to defend his
or her case. Thus, it is important for employers to
ensure they act fairly when making disciplinary
decisions

WHY SHOW CAUSE LETTER MATTERS?

An employer should allow an employee an opportunity
to ‘show cause’ why disciplinary action should not be
taken against them to comply with the procedural
fairness. In the event that an employer fails to afford
procedural fairness, an employee may seek to enforce
their rights and entitlements through legal action, which
may result in reinstatement of the position.

SAMPLES OF
SHOW CAUSE
LETTER





Dear Mr, Ali
This is with reference to several complaints about your alleged misconducts reported to management.
Our organization believes in observing high ethical values in all respect and expects the same from
all its employees leading to a healthy organizational environment.

Below-mentioned is the narration of incidents reported to us by your superiors and other staff members
that are treated as misconduct from your side:
______________________________________________________________________________________________________
________________________________________________

Management has taken a serious note of the same and hereby condemns the same and issues this
show cause notice to allow you to put forth your part / explanation. Your misconduct has aroused or is
capable of arising severe consequences which can be harmful to our reputation and overall business
leading us to monitory and other severe losses.

You are hereby asked to submit a written explanation of your conduct and provide us a valid cause why
disciplinary action should not be taken against you. It should reach to ________by _________.

We anticipate your positive and constructive approach ahead.

Date

To [employee name]

Subject: Notice of Absenteeism

This is to inform you that your absenteeism has been observed critically. Your absenteeism reflects
poorly on organizational performance and leads to lowered productivity not only yours but also those
whose work tasks are tied to yours. Here is a summary of the observation:

You have taken a total of 15 leaves in the past 3 months
You failed to complete the stipulated 40 hours a week in your contract in several weeks
You are difficult to access at your desk due to your absenteeism on work
You failed to complete your assigned tasks within the specified time limits
You are hereby requested to provide a written explanation for your high absenteeism within the next 3
days.

Sincerely,
Irene Husk
Manager Human Resources

Example of a badly drafted show cause letter:

"You have breached Company policy and procedure relating to the approval of
payment vouchers."
What would be better:

"On 23 January 2015, you had approved payment voucher no. 12455 dated 21 January
2015 ("Voucher"). The Voucher was for payment of the sum of RM10,000.00 to ABC
Sdn Bhd for purchase of stationery. As set out in the Company's Approval Authority
Matrix, you are only authorised to approve payments up to RM5,000.00 only and any
payment exceeding this amount must be referred to and approved by the General
Manager. Your approval of the Voucher in excess of your approval authority limit is in
breach of the Company's policies and procedures relating to the approval of payment
vouchers as set out in Clause 3.5 of the Controller's Handbook."

SHOW CAUSE LETTER FORMAT



Date of the show cause letter and references
Description of Misconduct or wrongdoing
Reply show cause letter to whom and last
date to submit

FACT FINDING
INVESTIGATION

GUIDE TO CONDUCT FACT FINDING INVESTIGATION

A Fact-Finding/Preliminary Investigation should be
conducted whenever the actions of an employee may
potentially lead to disciplinary action. It is a process of
gathering the facts and to determine whether work rule,
policy and procedure, regulation or practice has been
violated.

An effective investigation is conducted to uncover
sufficient facts to justify a result or to just record
somewhere that the incident or misconducts occurred



It could protect the interests and reputation of the
Company and its shareholders

It is preventing misconduct and violations at the
workplace and

Ensuring that corporate activities are complied with
applicable laws and company’s rules and regulation

An investigation is a fact-finding with respect to a
particular incidents or misconducts –
whether suspected conduct did or did not take place; what
the circumstances were;
who was involved;
whether a violation of law or company policy occurred

An investigation must be perceived as having been
thorough, independent and analytical.

A Fact-Finding/Preliminary Investigation will be handled by
someone in the HR Division under the capacity of supervisory,
managerial or HR positions.
Additionally, the investigation might be conducted by an
individual(s) outside of the work unit/department/division i.e
Security Department
It is not practical or allowable that the investigation should
not be conducted by a supervisor or manager who may have
first hand knowledge and participated in or witnessed an
incident.

The preliminary investigation is associated to;

(1) verification of an offense;
(2) identification of the victim, place and time of the crime as
well as witnesses;
(3) identification of solvability factors;
(4) communication of the circumstances of the offense; and
conclude the case
A preliminary investigation can be carried out to determine
whether there is a prima facie case

THE CONTENTS OF THE INVESTIGATION REPORT

A description of the case investigated.
Facts and figures of the case including supporting evidences, witnesses
and related documentations. Was a policy, procedure or regulation
violated?
The examination of types of wrongdoings and its levels by examining with
the Company’s Rules and Regulations as well as Company’s Policy and
Procedures
Describe any inconsistencies between witnesses and identification of the
relevant documentations
Examine the employee discipline history
Draft then concluding remarks ; Prima facie case and recommendations
Signature of Fact-Finder(s).
*** Information must be clear, concise, objective and factual.

The basic principles of investigation;

1. Confidentiality - Every aspect of an investigation should be kept confidential.
Maintaining confidentiality is critical to the integrity of an investigation.

2. Proper Mindset - Doubt is one of the primary attributes of any investigator.
Investigators must be appropriately skeptical to gather the facts. Investigators
must have sufficient imagination and theories to compare factual evidence as it
develops. They must persevere until the anomalies are resolved and the fact
pattern is thoroughly understood.

3. Professionalism - The essence of professionalism is that the investigators
conduct the investigation with integrity, fairness and diligence. How the
investigation is conducted reflects the professionalism of the investigators.

4. Independence - Investigators must be free from actual or apparent
bias or conflict of interest. Independence means that everyone gets a
fair chance, and that all investigation subjects are each investigated in
the same manner, with the same professional, impartial, objective
treatment.

5. Competence - The quality of an investigation also depends on the
competence of the investigators. The ability to investigate and
interview effectively is an acquired skill. Investigators must have the
experience and the expertise to conduct a credible investigation.
Investigators must understand how to interview witnesses, manage
documents and other records, and to maintain any applicable privileges
to the extent possible. Investigators should also be fully informed about
company policies, procedures and company history

6. Objectivity and Impartiality - the reported conduct in an investigation
must be viewed objectively. All information must be reviewed and analyzed
using the same standards, and the findings in an investigation should be based
on the facts, not an opinion filtered through the investigator’s personal value
system. The investigator should not bias.

7. Protecting Retaliation - Those who report possible or actual misconduct
and those who cooperate in an investigation must be protected from retaliation.

8. Timeliness - There are varying levels of complexity and time requirements.
But each investigation needs to be done promptly

BEST PRACTICES TO APPLY

Using proper applications (methods & tools ) to gather the truth
Don’t pre-judge the outcome of an investigation before you have
interviewed the witnesses, gathered and reviewed all the relevant
documents. Be positive that there are always potential possibilities might
occur which need further explanations or scenarios.
Be prepared to any loopholes, consequences and impacts that might arise!!

Maintain the confidentiality of all the investigations at all times.
However, charges of wrongdoings, if it later found to be groundless, can
still damage the accused and company’s reputation. Should disclose the
allegations or investigation that’s being taken place before the issue or
case concluded.

DRAFTING THE
SHOW CAUSE LETTER

There is no safe formula or template for a show cause
letter.
Each has to be tailored to the specific issues being raised,
although it should generally: be written in a clear, rational
and impartial manner; be issued as soon as practicable;

Address with sufficient particularity the factual allegation or
allegations being made against the employee requiring a response.
Such particulars will likely require the times, dates, places and
circumstances for each allegation being made.

In some instances, names of witnesses or supporting information
(such as documents) should be disclosed;
Be accurate and not omit or misrepresent any relevant circumstance;
and,
Afford a fair time for the employee to make an effective response.

The first is to really look at ‘What is the issue?’
What issue or issues have been raised in the show cause letter? For
instance, you should look at whether the allegations made are
sufficiently clear.
Could lead the employee become confused and could not understand
its content
If you do not know precisely what is the allegation, then there is a
probability that you will get the unfavourable outcome and lead to a
liability to the organization

The second thing to consider is ‘What rules or regulations
apply to the situation?’
Has the show cause properly identified the law, code of
conduct, regulation or contract condition said to have
been breached? You need to be aware of the standard you
are expected to meet, as well as the procedures that may
apply to any disciplinary process.

Think about the facts and the rules.
We may need more information, or trace the witness who could help
explain things.
Well understand the rules or laws that apply.
Collect all the possible evidences, it could be the Company’s Rules and
Regulations, Policies and other related documentations i.e. Contract of
Employment, Employees Record, the Company’s Emails and
Correspondences incl. the instructions and circulars and etc.
There are so much possibilities to ponder…, and often, it is not just one
obvious way to respond.

So what happens if things don’t go according to plan?
For an employee, if it doesn’t go to plan you may end up
facing disciplinary action and even dismissal.
If an employer gets the process wrong, then an employee
may be able to successfully take a legal action.

What kind of action an employee can take?

There can be claims for unfair dismissal, adverse action or
breach of contract, to name a few. Often it is difficult to be
reinstated following dismissal from a job, but it can happen.
It is more usual for people to receive compensation if an
employer has acted unfairly, contrary to the law or in breach of
a contract.