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2025 MarsdenLR 5503
INDUSTRIAL COURT KUALA LUMPUR
ANSLEM VICTOR LIM – Appellant
Versus
DESTINE MEI SDN BHD – Respondent
Award No: 104 of 2025 [Case No: 19/4-1392/20]
The burden of proof in unfair dismissal cases lies with the employer, who must demonstrate just cause for termination; failure to do so renders the dismissal unjust.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Employment Act 1955 - Section 14(2) - Dismissal of employee - Claimant dismissed without just cause or excuse - Company failed to adhere to proper procedural requirements for dismissal - Burden of proof lies with the employer to justify dismissal - Claimant's dismissal deemed procedurally and substantively unfair. (Paras 1, 20, 24, 30, 36, 82, 102)
(B) Dismissal - Just cause and excuse - Employer must provide convincing evidence of misconduct - Failure to substantiate allegations renders dismissal unjust - Proportionality of punishment must be considered. (Paras 74, 90, 94)
Facts of the case:
The Claimant was employed as a Senior Manager and was dismissed on 31 October 2019 after being accused of misconduct. The dismissal followed a series of show cause letters and a domestic inquiry that the Claimant argued was improperly conducted. (Paras 1, 19, 20)
Findings of Court:
The Court found that the Company failed to prove that the dismissal was with just cause or excuse, and the dismissal was rendered null and void. (Paras 102, 112)
Issues: The main issues were whether the Claimant was dismissed without just cause and whether the domestic inquiry was conducted properly. (Paras 20, 27)
Ratio Decidendi: The Court ruled that the Company did not adhere to proper procedures in dismissing the Claimant, and the burden of proof lies with the employer to justify dismissal. (Paras 24, 30, 36)
Result: The Claimant was awarded RM127,300.00 as compensation for wrongful dismissal.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 [Act 177] pertaining to the dismissal of Anslem Victor Lim (hereinafter referred to as "the Claimant") by Destine Mei Sdn Bhd (hereinafter referred to as "the Company") on 31 October 2019.
[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal on 31 October 2019 by the Company.
[3] The Claimant commenced employment with the Company on 9 January 2015 as a Senior Manager in Business Development with a job grade of B7 and a monthly salary of RM10,000.00.
Referred Cause Papers
[4] Parties had filed the following pleadings before this Honorable Court :
a) Statement of Case dated 22 September 2020;
b) Statement in Reply dated 10 October 2020; and
c) Rejoinder dated 10 November 2020.
[5] The documents and witness statements used which were before this Honorable Court during the trial are as follows:
Witnesses
[6] The hearing of this case proceeded over seven (7) days on 10 July 2023, 11 July 2023, 19 October 2023, 30 November 2023, 13 May 2024, 5 June 2024, and 22 October 2024 during which the Claimant produced a total of one (1) witness, which was the Claimant himself, and the Company produced a total of three (3) witnesses as follows:
a) Abdul Manab bin Ibrahim (hereinafter referred to as "COW-1");
b) Siti Iylia Eleena (hereinafter referred to as "COW-2"); and
c) Zainol Mahariq bin Zainol Haris (hereinafter referred to as "COW-3").
Chronology Of Events — Claimant's Case
[7] The Claimant commenced employment with the Company on 9 January 2015 as a Senior Manager in Business Development with a job grade of B7 and a monthly salary of RM10,000.00. During employment negotiations, the Claimant was informed that commissions on projects would be paid, although not included in the contract, and would be honoured by Mr Zainol Mahariq bin Zainol Haris, the Managing Director (hereinafter referred to as "COW-3").
[8] In March 2016, the Government project that the Claimant was working on was awarded to the Company, resulting in a performance bonus of RM10,000.00 and a permanent offer of appointment starting 1 April 2016. Due to the Claimant's dedication, the Government contract was extended from 1 May 2019 to 30 April 2021, and it was agreed with COW-3 that the Claimant's monthly commission would be increased to RM17,500.00.
[9] During his tenure, the Claimant was subjected to numerous tasks, both official and personal, at the behest of COW-3. This included managing business development, financial analysis, project technical requirements, human resources, legal and secretarial works, as well as handling COW-3's personal arrangements and expenses.
[10] The Claimant frequently paid for COW-3's personal and work-related activities using his own money, which was later reimbursed by the Company.
[11] On 5 September 2019, COW-3 accused the Claimant of sharing private information with his wives and leaking business details to a competitor, demanding his immediate resignation. The Claimant denied the allegations but was pressured to resign. COW-3 even asked his secretary to type out a resignation letter for the Claimant.
[12] On 10 September 2019, the Claimant followed up on the resignation and his unpaid commissions via WhatsApp but received no response from the company lawyers.
[13] On 11 September 2019, the Claimant was offered an unconditional resignation in exchange for unpaid claims and a commission. The Claimant sought written confirmation, which was not provided.
[14] On 13 September 2019, the Claimant emailed the Human Resources Department detailing the coerced resignation and outstanding amounts, receiving no response. On 23 September 2019, the Claimant received a show cause letter alleging misconduct, including poor conduct, misuse of expense claims, and withholding health information. He was suspended for two weeks starting 23 September 2019. The Claimant did not receive any inquiry reque
