The dismissal of an employee without a Domestic Inquiry and without just cause or excuse is deemed unjustified, and the punishment must be proportionate to the misconduct.

AWARD

Indra Ayub:

A. Reference

[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of MONG KIAN LIANG (hereinafter referred to as "the Claimant") by RECRON (MALAYSIA) SDN BHD (hereinafter referred to as "the Company").

B. Preface

[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal on 9 June 2020 by the Company.

[3] This case was heard before the former Chairman YA Puan Rajeswari Karupiah, who had opted for an early retirement effective September 2023.

[4] On 23 November 2023, the Honourable President of the Industrial Court of Malaysia had directed me to hand down the award. In so doing, I relied on all the documents referred to during the trial vis-a-vis the Bundle of Documents, the Witness Statements, and the Written Submissions filed herein by both parties as well as the Notes of Proceedings of this case.

[5] The Claimant commenced his employment with the Company as an Assistant Section Chief of the Solids Marketing Department at the Company's Kuala Lumpur office on 1 September 2008.

[6] The Claimant was transferred to the Melaka branch vide a letter dated 21 February 2020 of which, according to the Company, the transfer was done due to an alleged sales malpractice of the Claimant. However this allegation of sales malpractice was never stated in the Show Cause Letter and the Termination Letter issued to the Claimant.

[7] The Show Cause Letter dated 15 May 2020 was issued by the Company to the Claimant with the following allegation of misconduct:

"It has been reported by your Security team that you have manipulated your attendance and you have been missing from your workplace without prior approval/authorisation from your immediate Manager on 5 May 2020."

[8] The Claimant, in his reply to the Show Cause Letter vide a letter dated 20 May 2022,inter alia, states that, on that particular day, his car broke down and he was advised by a mechanic to send his car to a workshop for a detailed inspection. The Claimant contended that he had informed his supervisor on his whereabouts at that material time.

[9] The Company was dissatisfied with the explanation by the Claimant and decided to terminate the Claimant's employment with the Company with immediate effect vide a Letter of Termination dated 9 June 2020.

[10] The Claimant submitted that he was unlawfully terminated and that his dismissal by the Company was without just cause or excuse, which contravened the good labour practice, harsh, against the principle of natural justice, and the Company acted in mala fide. There was no Domestic Inquiry ever held prior to the Claimant's dismissal. The Claimant contended that his dismissal was not due to misconduct, but it was for other collateral reasons.

[11] The Company, however, states that the termination of the Claimant's employment was lawful with just cause or excuse. The Company prays for the punishment of dismissal to be upheld and the Claimant's claim to be dismissed.

C. Witnesses

[12] There were 7 witnesses who testified in Court as follows:

COW1: Sunder Raj Jagadesh - the General Manager, Sales Commercial Division of the Company. His witness statement was marked as COWS1.

COW2: Nortinah Abdul Ghani - the Assistant Manager, Human Resource of the Company. Her witness statement was marked as COWS2.

COW3: Lim Ai Nee - the Factory Assistant, Human Resource Manager of the Company. Her witness statement was marked as COWS3.

COW4: Lim Yew Onn - the Site Head of Malacca Plant of the Company. His witness statement was marked as COWS4.

CLW1: Luwe Chuin Chuan - the Former Shift Manager at Malacca Manufacturing Division of the Company. His witness statement was marked as CLWS1.

CLW2: Mong Kian Liang - the Claimant. His witness statement was marked as CLWS2.

CLW3: Nazrul Said - the Mechanic of Nazwa Auto Workshop. His witness statement was marked as CLWS3.

D. Issues For Determination

[13] In th