Dismissal for misconduct requires proven justification; a single act may constitute sexual harassment. Misconduct charge must align with the definitions established in workplace policies, establishing principles of bias and fairness in employer actions.

Introduction

[1] In this judicial review application, Tobacco Importers and Manufactures Sdn Bhd ("the company"), is challenging the award of the Industrial Court dated 11 October 2022 which allowed the claim of its employee, Kuldeep Singh a/l Udham Singh ("claimant") that his dismissal on 5 February 2020 was without just cause and excuse. The Industrial Court awarded the claimant back wages and compensation in lieu of damages.

[2] On 10 December 2024, I dismissed the judicial application. The reasons for my decision are as follows.

Background Facts

[3] The claimant commenced employment with the company on 1 December 2018 as its National Security Manager. He was dismissed on a charge of misconduct of harassment of a female colleague who was also a manager, ie, the Area Insights Manager ("the complainant"). The alleged misconduct occurred on the early hours between 1.00 am to 2.00 am on 24 November 2019 at an entertainment outlet known as the Wicked Club situated in the W Hotel, Kuala Lumpur.

[4] The facts reveal that on the night before, 23 November 2019, the company had held its annual dinner at a ballroom of the said Hotel. At the dinner, subsidised alcoholic beverages were served. It was not disputed that the claimant and the complainant, as had many others, consumed alcohol at the dinner. Around midnight, after the dinner, some 40 to 50 employees of the company, including the claimant and the complainant, adjourned to the Wicked Club, where more alcohol was consumed with dancing.

[5] Two weeks later, on 6 December 2019, the claimant was informed that a complaint was lodged against him. The complaint was that he had touched a female colleague at her waist without her consent. The claimant denied the allegation. At this point in time, he was not told who the complainant was.

[6] Twelve days later, on 18 December 2019, the claimant was handed a show cause letter on the allegation of inappropriate physical contact with a female employee without her consent, which was in breach of the "Respect in the Workplace - Preventing Harassment and Bullying" rule of the Standard of Business Conduct (SoBC). On 30 December 2019, the claimant submitted his reply, maintaining that the allegation was baseless and fabricated.

[7] On 3 January 2020, the company suspended the claimant with full pay. A notice of domestic inquiry was issued on 10 January 2020, and a domestic inquiry was held on 17 January 2020. The misconduct alleged against the claimant was the act of holding the lower waist of the complainant without her consent at the Wicked Club, which act had caused the complainant to feel uncomfortable and unsafe, and which misconduct was in breach of the duties and responsibilities as the company's National Security Manager.

[8] The domestic inquiry panel found the claimant guilty of the charge. Subsequently, in a letter dated 5 February 2020, in light of the finding of guilt for the misconduct which the company did not tolerate, the claimant was dismissed. The claimant made representations to the Industrial Relations Department under s 20 of the Industrial Relations Act 1967 ("the IRA "). The dispute was eventually referred to the Industrial Court for adjudication.

The Claimant's Case

[9] The claimant pleaded that the decision to dismiss him was arbitrary, capricious, motivated by bad faith, and by means of unfair labour practice. As a result, he claimed that his dismissal was without just cause and excuse and prayed to be reinstated to his former position without any loss of wages or other benefits. The company, on the other hand, pleaded that th