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2013 MarsdenLR 2686
INDUSTRIAL COURT, KUALA LUMPUR
PERUMAL GOVINDASAMY – Appellant
Versus
ENKEI (MALAYSIA) SDN BHD – Respondent
Award No: 1124 of 2013 [Case No: 25(22)/4-281/09]
The dismissal was just and appropriate based on the Claimant's baseless and defamatory allegations against the Company, constituting serious misconduct.
Headnote:(A) Industrial Relations Act 1967 - Role of Industrial Court in dismissal cases - Assessment of whether misconduct established and if misconduct justifies dismissal. (Paras 12, 13, 14, 161)
(B) Standard of proof - Industrial Court applies civil standard based on balance of probabilities, not criminal standard beyond reasonable doubt. (Para 16)
(C) Misconduct - Allegations made by Claimant against Company regarding unfair treatment and police involvement deemed baseless and defamatory, leading to serious misconduct. (Paras 91, 124, 148)
Facts of the case:
Claimant, employed since November 1993, was arrested as a suspect in a theft case involving aluminium ingots. Following police clearance, he faced a Domestic Inquiry leading to his dismissal for alleged misconduct, including making unfounded allegations against the Company.
Findings of Court:
The Court found the dismissal valid; allegations made by the Claimant were unsubstantiated and damaging to the Company’s integrity.
Issues: The key issue was whether the Claimant's dismissal was justifiable based on misconduct and whether proper procedural standards were followed.
Ratio Decidendi: The Court affirmed that the Claims’ allegations did not meet the burden of proof and that the cumulative misconduct justified dismissal.
Result: Claimant's dismissal deemed lawful, case dismissed.
[160] The word used in award above are all equally applicable to the facts of this case. The words used by the Claimant were also disrespectful of the MD, were insolent, impertinent and derogatory in nature and some of them offensively contumacious. They had the effect of lowering the dignity and position of superior (COW1). The Claimant in his position as a supervisor should not rain down such abusive words on COW1 when he had no basis to do so. His action in doing so merely goes to prove the contempt he had for the MD in particular and the Management as a whole. All his words and actions were based on what he assumed ie that the Company had provided his name as a suspect to the police when the Company reported the matter. His actions shows that he had prejudices against the Company which goes to the root of employer-employee relationship. The Claimant had this committed the said misconduct.
(ii) Whether The Misconduct Committed Was Just And Reasonable Cause
To Dismiss:
As stated in Bakti Comintel's case (supra) where an employee is guilty of using abusive language against the Company or its superior officers, the punishment of dismissal, even immediate dismissal, is justified.
In Guna Ratnam S Subramaniam v. Shin-Etsu Polymer, this Court at page 646 held as follows:-
"In Pearce v. Foster [1886 (71] QBD 536, Lord Esher states as follows:-
"If a servant conduct himself in a way inconsistent with the faithful discharge of his duty in the service, it is a misconduct which justifies immediate dismissal".
The learned author, BR Ghaiye too opined as follows:-
"If rude behaviour towards superior is allowed then it will not be possible to maintain discipline in the factory which is of utmost importance to the smooth running of all operations".
