Back
2023 MarsdenLR 2954
INDUSTRIAL COURT KUALA LUMPUR
ANG BEE HOON – Appellant
Versus
BE-P PHARMACY SDN BHD – Respondent
[Case No: 14/4-2206/19]
The employer must prove just cause for dismissal, and the absence of a Domestic Inquiry is an irregularity, not a fatal flaw in the dismissal process.
Headnote:(A) Industrial Relations Act 1967 - Sections 20(3) and 30(5) - Dismissal of employee for gross misconduct - Court found that the employer established misconduct through evidence, justifying dismissal - The absence of a show cause letter or Domestic Inquiry was deemed an irregularity, not fatal - The employer must prove just cause for dismissal. (Paras 18, 19, 22, 54)
(B) Burden of Proof - In dismissal cases, the employer bears the burden to demonstrate that the dismissal was with just cause and excuse, based on the misconduct alleged. (Paras 20, 21)
Facts of the case:
The Claimant was dismissed from her position as Senior Accounts Executive on 24 April 2019, with allegations of gross misconduct including abusive behavior and failure to perform job duties adequately. The Claimant contended that she was not given an opportunity to defend herself. (Paras 5, 16, 28)
Findings of Court:
The Court found that the Claimant's actions constituted serious misconduct justifying dismissal, and the Company had reasonable grounds for the termination. (Paras 49, 54)
Issues: The key issues included whether the dismissal was with just cause and whether the lack of a Domestic Inquiry was fatal to the dismissal process. (Paras 22, 50)
Ratio Decidendi: The Court held that the employer must demonstrate that the misconduct occurred and that it constituted just cause for dismissal. The absence of a Domestic Inquiry was not fatal, as the Court provided a fair hearing. (Paras 22, 54)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. court's jurisdiction and procedural authority. (Para 1 , 2 , 3 , 4) |
| 2. facts surrounding the employment and dismissal of the claimant. (Para 5 , 6 , 7 , 8) |
| 3. claimant's assertions regarding her employment and dismissal. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 4. legal standards for dismissal and burden of proof. (Para 18 , 19 , 20 , 21) |
| 5. implications of a defective inquiry and natural justice. (Para 22 , 23 , 24 , 25) |
| 6. limits of the court's inquiry regarding dismissal reasons. (Para 26 , 27 , 28) |
| 7. evidence of misconduct by the claimant. (Para 29 , 30 , 31 , 32 , 33 , 34) |
| 8. conduct leading to public disrepute. (Para 35 , 36 , 37 , 38 , 39) |
| 9. issues surrounding medical leave documentation. (Para 40 , 41 , 42) |
| 10. underperformance and failure to comply with job duties. (Para 43 , 44 , 45) |
| 11. assessment of just cause for dismissal. (Para 49 , 50 , 51 , 52 , 53) |
[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Honourable Minister of Human Resources, emanates from the dismissal of Ang Bee Hoon ("the Claimant") by BE-P Pharmacy Sdn Bhd ("the Company") on 24 April 2019.
Preamble
[2] This case was partly heard before the Learned Chairman Tuan Teoh Chin Chong and upon the exit of the said Learned Chairman from the Industrial Court in February 2022, the hearing was continued before me. Section 23(6) of the Act reads as follow:
"During the absence or inability to act from illness or any other cause by the Chairman, the Yang Di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman and, notwithstanding that the Chairman may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing and determining any trade dispute or matter commenced before him."
[3] Thus, it is clear that allows another Chairman to continue hearing and determine a part heard case. Reference is also made to the High Court decision in Bax Global (Malaysia) Sdn Bhd v. Sukhder Singh Pritam Singh & Anor ; ; [2010] 2 CLJ 534 wherein it was held that a Learned Chairman has the jurisdiction to hand down an Award in a matter heard by another Chairman.
[4] This Court will determine the issues before it and make its findings based on the pleadings, notes of proceedings, the relevant oral and documentary evidences, the cause papers and submissions. The following documents were filed before this Court:
(i) Statement of Case dated 17 January 2020;
(ii) Statement in Reply dated 17 March 2020;
(iii) Rejoinder dated 18 July 2020;
(iv) Claimant's Bundle of Documents (Volume 1): CLB-1;
(v) Company's Bundle of Documents: COB-1;
(vi) The Claimant's Witness Statement: CLWS-1;
(vii) Witness Statement of Adrian Lau Eng Chong: COWS-1;
(viii) Witness Statement of Kelly Chung Kee Lee: COWS-2;
(ix) Witness Statement of Jagmaya Kaur Sidhu (Dr Maya): COWS-3;
(x) Witness Statement of Susan Yeo Sing Hong: COWS-4;
(xi) Witness Statement of Kok Li Mee: COWS-5;
(xii) COW-4's Incident Report: CO-2;
(xiii) The Claimant's Written Submissions dated 15 March 2023;
(xiv) The Company's Written Submission dated 15 May 2023;
(xv) The Claimant's Reply Submission dated 6 May 2023; and
(xvi) The Company's Reply Submissions dated 29 May 2023.
The Company's Case
[5] The Claimant commenced employment with the Company on 20 December 2018 as a Senior Accounts Executive with a basic salary of RM5,000.00 and a travelling allowance of RM300.00 (subject to any deductions based on work attendance) until her dismissal on 24 April 2019, which the Company asserts was with just case and excuse.
[6] The Company and the Claimant entered into an employment contract dated 20 December 2018. Clause 4 of the employment contract provides for "Termination of Service" as stated therein (pp 3 & 4 of COB-1).
[7] The Company avers that the Claimant's employment prior to 20 December 2018 was with a different legal entity of no relevance is this
