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2023 MarsdenLR 112
INDUSTRIAL COURT PENANG
SARASWATHY NAYAR SURENDRAN KUMAR – Appellant
Versus
YTL COMMUNICATIONS SDN BHD – Respondent
Award No: 1828 Of 2023 [Case No: 9(18)/4-2002/20]
The dismissal of an employee must be justified with just cause, and the penalty must be proportionate to the misconduct, particularly considering the circumstances surrounding the dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - The Claimant was dismissed by the Company on 4 March 2020, while in her ninth month of pregnancy, following a domestic inquiry that found her guilty of multiple charges of misconduct. The court found that the dismissal was without just cause or excuse, ruling that the process was flawed and the punishment disproportionate. (Paras 1, 23, 39, 44)
(B) Burden of Proof - The Company must prove that the termination was justified on the balance of probabilities. (Paras 17, 31)
(C) Proportionality - The court emphasized the importance of proportionality in disciplinary actions, stating that misconduct must warrant the severity of dismissal. (Paras 36, 38)
| Table of Content |
|---|
| 1. reference by minister and case background (Para 1 , 2 , 3 , 4) |
| 2. employment history and dismissal details (Para 5 , 6 , 7 , 8 , 9) |
| 3. claimant's arguments against dismissal (Para 10 , 11) |
| 4. company's defense and arguments (Para 12 , 13 , 14) |
| 5. court's role and burden of proof (Para 15 , 16 , 17 , 18) |
| 6. court's findings on employment status (Para 19 , 20 , 21 , 22 , 23) |
| 7. evaluation of misconduct charges (Para 24 , 25 , 26 , 27) |
| 8. assessment of proportionality of dismissal (Para 28 , 29 , 30 , 31 , 32 , 33) |
| 9. definition of misconduct and reasoning (Para 34 , 35 , 36) |
| 10. court's conclusion on dismissal (Para 37 , 38 , 39) |
| 11. calculation of compensation and remedy (Para 40 , 41 , 42 , 43) |
[1] The reference from The Honourable Minister of Human Resources, Malaysia (hereinafter referred to as "the Minister") pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in this case requires this Court to hear and determine the complaint made by Saraswathy Nayar d/o Surendran Kumar (hereinafter referred to as "the Claimant") regarding her dismissal by YTL Communications Sdn Bhd (hereinafter referred to as "the Company") effective 4 March 2020.
[2] This Court has considered the following cause papers and documents in handing down this Award, namely:
(a) the Claimant's Statement of Case dated 26 November 2020;
(b) the Company's Statement In Reply dated 7 December 2020;
(c) the Claimant's Rejoinder dated 24 December 2020;
(d) the Company's witness statement (Albert Ooi Say Hoe) marked as "COWS-1";
(e) the Company's witness statement (Yew Kuan Min) marked as "COWS-2";
(f) the Company's witness statement (Toong Weng Sheung) marked as "COWS-3";
(g) the Claimant's witness statement (Saraswathy Nayar Surendran Kumar) marked as "CLWS-1";
(h) the Company's Bundle of Documents marked as "Bundle A";
(i) the Company's Bundle of Document Vol 2 marked as "Bundle B";
(j) the Company's Bundle of Document Vol 3 marked as "Bundle C";
(k) the Claimant's Bundle of Documents marked as "Bundle D"; and
(l) the Claimant's Supplementary Bundle of Document marked as "Bundle E"
Brief Background Of The Case
[3] Prior to the hearing of this case before this Court, the Company filed an application for Judicial Review of the reference of the Minister on the ground, amongst other, that the Company was not an employer of the Claimant at the time of her dismissal. The High Court nevertheless dismissed the Company's application without providing any reasons.
[4] The Company thereafter filed an application to this Court for a ruling on the said matter and by way of an Interim Award No: 1670 of 2021 dated 16 November 2021 (hereinafter referred to as "the Interim Award"), this Court dismissed the Company's application. The Interim Award was never challenged and the hearing of this case before this Court commenced on 21 April 2022.
Brief Facts Of The Case
[5] The Company has its principal business address at 18th Floor, Menara YTL, No 25, Jalan Bukit Bintang, 55100 Kuala Lumpur. The principal business of the Company is mobile communication industry, and it provides internet connectivity solution and offers mobile broadband connection through wireless networks across the country.
[6] The Claimant commenced her employment with the Company on 15 March 2011 as a Senior Executive with a monthly salary of RM3,200.00 vide agreement dated 15 March 2011 (hereinafter referred to as "the Contract of Employment") and performed her job at a retail outlet at the lower ground floor of Queensbay Mall in Penang. On 9 September 2011, the Claimant was confirmed in her position as Senior Executive effective 15 September 2011 and was subsequently promoted to the position of an "Assistant Manager - Yes Store" on 1 February 2012.
[7] Pursuant to a letter dated 19 April 2012, the Claimant was transferred to YTL Digital Sdn Bhd (hereinafter referred to as "YTL Digital") and was re-designated as an Assistant Manager effective 1 April 2012 (he
