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2024 MarsdenLR 186
INDUSTRIAL COURT KEDAH
MOHD KHAIRUL ISMAIL – Appellant
Versus
TELUK DATAI RESORT – Respondent
Award No: 277 of 2024 [Case No: 18/4-956/22]
The dismissal of an employee for breaching established SOPs is justified if the employee's misconduct is proven through admissions and evidence, affirming the employer's right to enforce compliance.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – Claimant dismissed for misconduct involving unauthorized vendor booking – Court must determine if dismissal was with just cause or excuse – Claimant's admissions during inquiry established misconduct – Dismissal upheld as fair and justified. (Paras 1, 22, 73)
(B) Burden of Proof – Employer bears burden to prove dismissal was with just cause – Standard of proof is balance of probabilities. (Paras 20, 21)
(C) Domestic Inquiry – Validity of inquiry and adherence to natural justice principles are crucial – Inquiry findings considered by Industrial Court. (Paras 24, 25)
Facts of the case: The Claimant, employed at the Hotel since 2003, was dismissed for arranging a fishing trip with an unauthorized vendor, breaching the Hotel's SOPs. The Claimant contended the dismissal was unjust as the Hotel proceeded with a similar booking by another employee. (Paras 2-10)
Findings of Court: The Court found the Claimant committed misconduct as charged, and the dismissal was justified based on the evidence presented. (Paras 73, 74)
Issues: Whether the Claimant committed the alleged misconduct and whether the dismissal was with just cause or excuse. (Paras 22)
Ratio Decidendi: The Court ruled that the Claimant's admissions during the inquiry confirmed his misconduct, and the Hotel's actions were justified based on established SOPs. (Paras 44, 73)
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference made on 17 May 2022 by the Director General of Industrial Relations Department to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as 'the Act') arising out of the dismissal of MOHD KHAIRUL BIN ISMAIL (hereinafter referred to as 'the Claimant') by TELUK DATAI RESORTS (hereinafter referred to as 'the Hotel'). The Director General's reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Hotel on 7 May 2021.
Brief Background Facts Of The Case
[2] The Claimant's pleaded case as contained in his Statement of Case dated 18 July 2022 was that he joined the Hotel as a Pool Attendant on 8 November 2003 and was subsequently confirmed in the said position.
[3] In 2008, the Claimant was promoted to a waiter at the Food and Beverage Services Department of the Hotel. In the year 2011, the Claimant was transferred to the Front Office Department as a Bellman Concierge and was promoted as Senior Bellman in the said department. The Claimant states that his last drawn basic salary was RM1,750.00 with average monthly tips of RM1,000.00.
[4] On 5 April 2021 at about 11.30 pm, the Claimant pleaded that he received a phone call from one Mr Anas who is the Assistant Beach Villa Manager requesting assistance to make a booking for a fishing trip for a guest of the Hotel on 6 April 2021.
[5] It was pleaded that the Claimant was informed by Mr Anas that he had requested help from Mr Nizaruddin Che Yon, the Bell Captain and Mr Sabri Ismail the Assistant Chief Concierge, however, Mr Anas was informed by them that it would be difficult to do the booking on short notice and he was told to contact the operator or the agent directly and that was when Mr Anas contacted the Claimant for assistance even though the Claimant was not on duty at that time.
[6] The Claimant then pleaded that he contacted one Mr Masri who is a fishing boat operator for the price of RM880.00 and stated that the Hotel had on previous occasions made similar bookings for fishing trips at the same rate with Mr Masri even though he was not a registered agent with the Hotel.
[7] The Claimant then informed the Hotel's Front Office Manager, Ms Siti Sundari Kamarulzaman about the said booking as it was the Standard Operating Procedure (SOP) for the Hotel's concierge. However, the Claimant pleaded that Mr Nizarrudin had already made the booking with Mr Masri for the price RM600.00 as he was unaware that the Claimant had already made the booking for the said trip. Further, the Claimant also pleaded that previously, Mr Nizarrudin had booked a fishing trip for the Hotel's General Manager and the Hotel had never raised any complaints of Mr Masri being an unregistered agent.
[8] The Claimant stated that on 6 April 2021 the fishing trip booked by him was cancelled and the Hotel proceeded with the fishing trip booked by Mr Nizarrudin and pleaded that he was issued with a domestic inquiry notice by the Hotel for booking a fishing trip with an unauthorised operator and for conflict of interest.
[9] The Claimant pleaded that he had attended the domestic inquiry on 29 April 2021 and denied the charge against him and thereafter vide letter dated 6 May 2021 the Claimant was dismissed with immediate effect by the Hotel. The Claimant contended in his Statement of Case that he denies breaching the express and/or implied terms of conditions of his employment and puts the Hotel to strict proof of the charge of misconduct against him.
[10] The Claimant pleads that his dismissal by the Hotel was without just cause or excuse and hence pleaded for reinstatement and the other usual reliefs. In his Rejoinder dated 21 September 2022, the Claimant averred that the Hotel had allowed the fishing trip booked by Mr Nizarrudin with Mr Masri and no disciplinary action was taken against him.
[11] The Hotel on the other hand, in their Statement of Reply
