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THE CONCEPT of natural justice is a moral and legal compass for ensuring fairness when one party holds significant power over the other. The idea that every individual deserves a fair hearing and an unbiased judge is not a modern invention. 

This concept can be traced back as far as the Garden of Eden (R v Chancellor, University of Cambridge (1723) 1 STR 557 at 567, Dr. Bentley’s Case). It is a fundamental expectation of how power should be exercised. 

In the Garden of Eden, after Adam and Eve disobeyed His command, God did not summarily pass judgment. Instead, He engaged in what could be described as the first-ever inquiry.

He asked Adam, “Where are you?” and “Have you eaten from the tree that I commanded you not to eat from?” He then turned to Eve and asked, “What is this you have done?” 

This divine model demonstrates the primordial importance of the first rule of natural justice: hearing the other side before condemnation. The opportunity to speak, to explain, to confess, or to defend was granted even in the face of an omniscient Judge. 

This very theme of procedural fairness is codified in Hebrew law. The book of Deuteronomy explicitly instructs judges: “Hear the disputes between your people and judge fairly, whether the case is between two Israelites or between an Israelite and a foreigner residing among you. 

Do not show partiality in judging; hear both small and great alike” This single passage brilliantly captures both core tenets of natural justice: the duty to hear (audi alteram partem) and the rule against bias (nemo judex in causa sua). The classical Greeks grappled with these concepts. 

Later this principle was formalised by the Romans and absorbed into the English common law, which Malaysia inherited and adopted. 

Natural justice stands on two foundational pillars, expressed in Latin maxims. In the Malaysian workplace context; they are practical legal requirements for both employers and employees (also refer “Need to justify termination”, August 11,2025: https://www.dailyexpress.com.my/read/6203/need-to-justify-termination/).

Audi Alteram Partem (The Right to be Heard)

It literally translates to “hear the other side.” It requires that no person should be condemned or have a decision made against them without being given a fair opportunity to defend themselves and answer the allegations. 

In the workplace misconduct context, it entails several distinct components:

Notice of Charges (alleged misconduct): The accused employee must be informed of the specific misconduct they are accused of.  A formal letter (or email) known as “show cause letter” will be issued. 

The charges cannot be vague. It must contain sufficient and material details such as the date, time, location and nature of the alleged offence. This is pertinent to enable the employee to understand the allegations against them and prepare a meaningful defense. 

Opportunity to Explain: After being notified of the charges, the employee must be given a reasonable amount of time to provide an explanation. This is usually a written reply to the show cause letter. The employer is obligated to genuinely consider this explanation.

The Right to a Hearing (Domestic Inquiry): If the employer finds the employee’s written explanation unsatisfactory, the next step is typically to convene a Domestic Inquiry (DI). A DI is a formal internal hearing where evidence is presented. Here, the employee has the rights to:

i. Be present throughout the inquiry.

ii. Represented by a union representative or a fellow co-worker.

iii. Hear the evidence and cross-examine the employer’s witnesses.

iv. Present their own evidence and call their own witnesses

v. Present their mitigation (if available)

The purpose of the DI is to establish the facts of the case in a structured and fair manner before decision is made whether the employee is guilty of the alleged misconduct.

Nemo Judex in Causa Sua (The Rule Against Bias)

Simply means “no person should be a judge in their own cause.” This principle ensures that the decision-making process are seen to be, impartial and untainted by prejudice. Bias can manifest in several ways:

Actual Bias: This is where a decision-maker is demonstrably prejudiced against the employee. For instance, if a panel member is heard saying, “We know you are guilty, just admit it,” this would constitute actual bias. 

Apparent or Imputed Bias: The question is not whether the decision-maker was biased but whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Some examples:

i. A Section Head who was the primary accuser or witness cannot sit on the DI panel.

ii. A person with who has history of animosity or personal conflict with the accused employee should be excluded from the panel.

iii. An investigating officer (IO) who gathered evidence against the employee should not be a member of the adjudicating panel.

Failure to hold a domestic inquiry is not, in itself a fatal flaw that will render a dismissal unfair. 

The Industrial Court can step in and hear the evidence “de novo” or afresh to determine if the employer had just cause for dismissing the employee for misconduct. 

However, the courts have also consistently emphasised that holding a proper DI is an effective way for an employer to demonstrate that the employer had acted fairly and reasonably. 

It demonstrates that the employer’s decision to dismiss was not made in haste or bad faith but was the result of a fair and considered process.

Practical Considerations for Employers and Employees

For Employers: 

Investigate First: Before levelling any accusations, conduct a preliminary investigation to gather facts. This shows that the action is based on evidence and not rumour.

Draft a proper Show Cause Letter: Be specific. Material facts must be stated. Dates, times and related particulars must be clearly stated. Avoid emotional or vague language. 

If particulars are wrong, the entire case can fall apart. Give the employee a reasonable deadline (e.g., 3-7 days, it would depend case to case basis some allegations might me complex and need more time) to respond in writing.

Due consideration of the reply: Employees written explanation must not be treated as a mere formality. Review it objectively. If the explanation is plausible, you may need to investigate further.

Convene an Impartial Domestic Inquiry (DI)

Appoint an Unbiased Panel: The panel members should have no prior involvement in the case. They are there to listen to the evidence and make a finding of fact.

Issue a Notice of DI: Inform the employee of the date, time, and venue of the DI. Remind them of their right to bring a colleague or union representative.

Appoint a Prosecutor: A separate person should be appointed to present the company’s case and witnesses.

Maintain Proper Records: Keep detailed minutes or a recording of the entire proceeding. Assign a dedicated person to take notes verbatim. 

It’s a finding, not a punishment! The DI panel’s role is fact finding to determine guilt or innocence based solely on the evidence presented during the inquiry. 

A report with their findings should be submitted to the management once the DI has been concluded. The decision on the appropriate punishment (e.g., warning, suspension, dismissal) should be made by senior management, taking into account the employee’s service record, the severity of the misconduct and mitigation.

Communicate the Decision: Inform the employee of the final decision in writing, clearly stating the reasons and appeal avenues if any.

For Employees: 

When you receive a Show Cause Letter: Do not panic or ignore it. Read it carefully. If the allegations are unclear, you have the right to write back to the employer to ask for clarification. 

Submit a written explanation within the given timeframe. If you think you do not have sufficient time, write back to the employer requesting more time. Be professional and factual (also polite!). Deny the allegations if they are untrue and provide your version of events. 

Prepare Your Case: Think about the questions you want to ask the company’s witnesses. Prepare your own statement and gather your evidence.

Assert Your Rights at the DI: You have the right to challenge the evidence against you and present your own. If you feel a panel member is biased, you should raise an objection at the onset of the DI proceedings so it can be recorded in the minutes.

Stay Composed: Present your case clearly and respectfully.

Employees regardless of their position are entitled to be treated with fairness and dignity. 

Embracing natural justice is a hallmark of good governance by the employer which may even reduce the risk of costly legal battles by ensuring that difficult decisions of sacking an employee for misconduct are made based on sound reason and evidence. 

For employees, it is a vital shield against the arbitrary exercise of power by the employer. It provides them with a structured avenue to voice out their side of the story.