Back
2022 MarsdenLR 2977
INDUSTRIAL COURT KUALA LUMPUR
MOHD FIRDAUS OTHMAN – Appellant
Versus
NICHIBEI PARTS SDN BHD – Respondent
Award No: 2456 Of 2022 [Case No: 9/4-1614/21]
Absenteeism without leave constitutes just cause for dismissal under the Employment Act, provided the employer follows procedural fairness in issuing show-cause letters.
Headnote:(A) Employment Act, 1955 – Section 13 and 15(2) – Dismissal of employee – Claimant dismissed for absenteeism without prior leave – Claimant failed to comply with show-cause letters from employer – Employer's termination deemed with just cause – Court found no adequate evidence for Claimant's claims regarding leave approval (Paras [6] to [37]).
(B)
Industrial Court's role under IRA discussed – Standard of proof is on the balance of probabilities – Court must assess whether misconduct of the employee was established and if it constituted just cause for dismissal (Paras [14] to [16]).
Facts of the case:
The Claimant, employed as Senior Production Executive, was dismissed on 8 September 2020 after failing to respond to multiple requests for explanations related to unauthorized absenteeism during a period he claimed was due to a family emergency.
Findings of Court:
The Company had proved that the Claimant's absence breached company policies without valid reason, leading to a lawful termination.
Issues
: Whether the dismissal was justified based on the Claimant's non-compliance and whether the employer acted fairly.
Ratio Decidendi:
The Court emphasized that an employee absent for over two days without leave is deemed to have broken their contract, allowing the employer to terminate the contract justly.
Result:
Claimant's case dismissed.
AWARD
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Mohd Firdaus bin Othman (hereinafter referred to as "the Claimant") by his employer, Nichibei Parts Sdn Bhd (hereinafter referred to as "the Company") on 8 September 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 August 2021;
(b) the Company's Statement In Reply dated 8 October 2021;
(c) the Claimant's Rejoinder to the Statement In Reply;
(d) the Claimant's witness statement (Mohd Firdaus bin Othman) marked as "CLWS-1";
(e) the Company's witness statement (Tan Chin Chuan) marked as "COWS-1";
(f) the Company's witness statement (Tan Chin Chuan) marked as "COWS-1A";
(g) the Company's witness statement (Lee Yu Wei) marked as "COWS-2";
(h) the Company's witness statement (Mazura binti Osman) marked as "COWS-3";
(i) the Company's witness statement (Mazura binti Osman) marked as "COWS-3a";
(j) the Claimant's bundle of documents marked as "CLB-1";
(k) the Claimant's supplementary bundle of document marked as "CLB-2";
(l) the Claimant's text perbualan di antara Mohd Firdaus bin Othman, Puan Mazura dan Mr Tan marked as "CLB-3";
(m) the Company's bundle of documents marked as "COB-1"; and
(n) the Company's supplemental bundle of documents marked as "COB-2".
Brief Facts Of The Case
[3] The Company is a registered company in Malaysia having its address at Lot 1077, Mukim 1, Tingkat Perusahaan 6, Prai Industrial Estate, 13600 Prai, Penang.
[4] Pursuant to a letter dated 11 January 2011 (hereinafter referred to as "the Letter of Appointment"), the Claimant joined the Company as an Engineer effective from 27 January 2011 and received a monthly basic salary of RM1,800.00 and was subjected to a six-month probationary period. The Claimant was then promoted to the positions of Production Executive and Senior Production Executive.
[5] By way of a letter dated 14 August 2020 (hereinafter referred to as "the Letter of Show Cause"), the Company informed the Claimant that he was absent from work for two days on 4 August 2020 and 13 August 2020 and had violated subsection 15(2) or subsection 60f(2) of the Employment Act 1955 (hereinafter referred to as "the EA "), and was thus required until 18 August 2020 to provide his explanations. The Claimant, however, did not provide his reply as required. Thereafter, the Company issued another letter dated 25 August 2020 (hereinafter referred to as "the Letter of Final Show Cause") informing the Claimant that he was given a further seven days from 26 August 2020 until 4 September 2020 to comply with the Letter of Show Cause and to provide evidence of his absenteeism from 27 July 2020 until 20 August 2020 based on his given reason of having to take care of his sick father. The Claimant was also informed that failure to comply may lead to termination under subsection 15(2) or subsection 60f(2) of the . However, there was still no reply by the Claimant. Hence, the issuance of a letter dated 8 September 2020 (hereinafter referred to as "the Letter of Termination") by the Company wherein the Claimant was informed that his contract of service was terminated pursuant to s 13 of the . At the time of his dismissal, the Claimant was holding the position of a Senior Production Executive and his last drawn monthly basic salary was RM3,722.00.
The Claimant's Case
[6] In his Statement of Case, the Claimant states that-
(a) he had carried out his duties in accordance with the Company's rules and regulations as well as his superior's directions;
(b) he had notified the Company on his non-attendance for work on the reason that his father was sick, and such reason was accepted and approved by the Company;
(c) the Company was fully aware that he did not attend work for his du
