Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has ruled that the primary burden is on the employer to prove an employee’s misconduct in the event of termination.
“The primary burden is on the employer to prove fault so that the matter can be decided based on a preponderance of evidence that is clear, credible, and supports the ultimate conclusion with little room for doubt.”
“Overall, when an employee challenges his or her termination or termination, the onus is often on the employer to establish that the action was based on independent, impartial and logical reasons, and that in terminating or terminating the employee, the principles of natural justice and due process were religiously followed.
“The employer must produce substantial evidence to persuade the court that the decision was not motivated by revenge, bias and/or any prejudicial aspiration,” says a 12-page judgment written by Justice Muhammad Ali Mazhar.
Due to toothache, the petitioner consulted a dental surgeon on September 1, 2015, who advised him to undergo root canal treatment. After treatment, the petitioner requested reimbursement of the medical bill in accordance with the company’s approved policy.
However, the HR manager issued a show cause notice to him on December 1, 2015, alleging that he had submitted a fake medical bill amounting to Rs 10,000.
The petitioner submitted his response and denied the allegations. He participated in the investigation and also submitted the verified invoice on December 4, 2015 along with the payment receipt of Rs10,000.
However, based on adverse findings, the petitioner was terminated on March 8, 2016. The petitioner filed a complaint with the National Industrial Relations Commission (NIRC), which dismissed his plea.
Subsequently, he filed an appeal before a full bench of the NIRC, which allowed the appeal and set aside the order of the single panel of the NIRC.
He ordered that the petitioner be reinstated with full retroactive benefits. The company then filed a constitutional petition before the Sindh High Court (SHC), which set aside the NIRC’s comprehensive review order.
The petitioner then approached the Supreme Court whose three-member bench, headed by Justice Muhammad Ali Mazhar, set aside the SHC order.
In its verdict, the SC noted that when conflicting receipts were available on file, it was mandatory for the investigating officer to call a witness from the hospital for proof and verification, with the right of cross-examination being granted to the petitioner, without which the truth could not be discovered.
“The objective of a national investigation under labor law, if taken lightly, destroys the entire bedrock.
“Regardless of the fact that an investigator in a national investigation cannot be equated to a well-trained judicial officer, the minimum requirements of natural justice and due process are common sense and essential for the conscience of the investigator before finding an employee guilty of misconduct and forwarding the investigation report or recommendations to management.
The judgment noted that the employer has the inherent right and prerogative to initiate disciplinary proceedings in accordance with law to remedy misconduct, if committed by an employee.
However, the course of action in the event of an act of misconduct must adhere to the principles of natural justice and prescribed guidelines to ensure due process.
“Mishandling of misconduct cases has a negative impact on industrial relations and also tyrannizes the level of trust between management and workers.
“It is therefore essential that employers maintain transparency, uniformity and egalitarianism, which implies compliance with all legal requirements and equal treatment of employees without any discrimination or favoritism. »
The judgment also noted that proving guilt on misconduct charges is a serious matter and that at least for the employee the stakes are much higher than for the employer.
“Therefore, before declaring himself guilty, due diligence should have been done. In the present case, the testimony of the representative of the dental clinic/doctor
was inevitable to prove guilt whether the petitioner had paid Rs7,000 or Rs 10,000 and whether he had actually submitted a bill for excess amount or not.
“So, in our opinion, the hospital witness could be the star witness in this case who was ignored and no effort was made by the management representative to call him before the investigator as a management witness.
“There should be no onus on the employee to call it if management was unwilling to verify or confront these medical bills with its star/key witness, who through his own mistake lost its probative value and there was no evidence in the record which hospital/clinic bill was genuine.
“Indeed, the expression “star witness” or “key witness” refers to a witness whose testimony is considered to be the most influential for the prosecution and the defense.
“His testimony actually proves vital in corroborating key facts. It is quite common for the doctrine of the presumption of innocence to require the prosecution to prove its case beyond a reasonable doubt.
“The magnitude and extent of the probability of guilt may be based on the interdependence of the evidence. Therefore, even in domestic investigations initiated under industrial relations laws and civil service laws and regulations, it is the duty of the investigator/committee of inquiry to provide sufficient opportunity for a fair trial and due process,” the judgment said.
