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2023 MarsdenLR 2504
INDUSTRIAL COURT KUALA LUMPUR
KALAI ARASI SIVABALAN – Appellant
Versus
GARDENIA BAKERIES (KL) SDN BHD – Respondent
Award No: 648 Of 2023 [Case No: 3/4-825/20]
The Industrial Court must prove that alleged misconduct justifies dismissal, placing the burden of proof on the employer.
Headnote:In determining claims under s 20(3) of the Industrial Relations Act 1967, the court evaluates whether the claimed misconduct that led to dismissal is substantiated and if so, if it constitutes just cause. The Claimant claimed unfair dismissal based on a misunderstanding concerning a medical certificate. The Court found that the alteration on the certificate was made by the medical officer and not the Claimant, ruling in favor of the Claimant. The Company failed to prove just cause for dismissal. The Claimant is entitled to compensation and backwages, totaling RM20,460.00.
| Table of Content |
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| 1. establishes the context for the dismissal and involved parties. (Para 1 , 2 , 3 , 4) |
| 2. presents company’s stance and justifications for dismissal. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 3. summarizes legal framework governing dismissals in employment. (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 4. identifies primary issues regarding the dismissal. (Para 36) |
| 5. evaluation of evidence regarding the claimant's conduct. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46) |
| 6. concludes on the finding of misconduct and unfair dismissal. (Para 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58) |
| 7. determines the remedy and compensation awarded to the claimant. (Para 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71) |
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Kalai Arasi a/p Sivabalan (hereinafter referred to as "the Claimant") by Gardenia Bakeries (KL) Sdn Bhd (hereinafter referred to as "the Company") on 6 August 2019.
[2] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 6 August 2019 and was received by the Industrial Court on 14 July 2020.
[3] Hearing of this case commenced on 8 August 2022 and concluded on 11 August 2022. In this trial, the following witnesses have been called by the parties:
(a) The Claimant's witness:
CLW-1: Ms Kalai Arasi a/p Sivabalan, the Claimant, former General Worker of the Company.
CLW-2: Dr Madihah binti Ahmad Puad.
(b) The Company's witnesses:
COW-1:Datin Dr Rofina binti Abdul Rahim.
COW-2:Ms Shamini C. Maganderalingam, the Industrial Relations Manager of the Company.
[4] This Court had considered all the notes of proceedings in this matter, and the following documents in handing down this Award:
(a) Pleadings
(i) Statement of Case dated 8 September 2020;
(ii) Amended Statement in Reply dated 28 September 2020;
(iii) Rejoinder dated 8 October 2021.
(b) Bundles of Documents
(i) Claimant's Bundle of Documents marked as "CLB-1";
(ii) Company's Bundle of Documents marked as "COB-1";
(iii) Company's Supplementary Bundle of Documents marked as "COB-2".
(c) Witness Statements
(i) Claimant's Witness Statement of Kalai Arasi a/p Sivabalan marked as "CLWS-1";
(ii) Claimant's Witness Statement of Dr Madihah binti Ahmad Puad marked as "CLWS-2";
(iii) Company's Witness Statement of Datin Dr Rofina binti Abdul Rahim marked as "COWS-1;
(iv) Company's Witness Statement of Shamini C. Maganderalingam marked as "COWS-2".
(d) Written Submissions
(i) Claimant's Written Submission dated 11 October 2022;
(ii) Company's Written Submission dated 12 October 2022;
(iii) Claimant's Submission in Reply dated 5 December 2022;
(iv) Company's Reply Submission dated 5 December 2022.
A. The Claimant's Case
[5] The Claimant pleads that she joined the Company on 26 February 2018 as a General Worker.
[6] The Claimant states that she was sick on 30 May 2019 and she went to the Klinik Kesihatan Seksyen 19, Shah Alam. She was given medical leave for the next day which is on 31 May 2019. However, the date "31" did not appear clear on the medical certificate and the Claimant informed the Medical Officer on that. Then the Medical Officer has written on top of the number 1 to make it appear clear as 31 May 2019.
[7] The Claimant then served the said medical certificate dated 30 May 2019 to the Company.
[8] However, the Claimant received a suspension and domestic inquiry notice on 26 July 2019 due to the medical certificate dated 30 May 2019. The Company alleged that the Claimant has amended the date on the medical certificate from 30 May 2019 to 31 May 2019.
[9] In the domestic inquiry the Claimant informed the Company that she did not amend the medical certificate and the Claimant was asked to prove that by the Company.
[10] The Claimant then took a copy of the medical certificate which she served to the Company and met with the
