Engaging in physical fights at the workplace is deemed serious misconduct, justifying dismissal under company policy.

AWARD

Paramalingam J Doraisamy:

Reference

[1] This is a reference made under s 20 (3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Saiful Azrie Joseph Bin Abdullah (hereinafter referred to as "the Claimant") by PEC Powercon Sdn Bhd (hereinafter referred to as "the Company") on 20 September 2022.

[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 20 September 2022.

I. Procedural History

[3] The Court received the letter pertaining to the DGIR's reference under s 20(3) of the Industrial Relations Act 1967 on 3 April 2023.

[4] The matter was fixed for mention on 27 April 2023, 4 July 2023 and 6 September 2023.

[5] The trial proceeded on 3 October 2023, 20 November 2023, 15 February 2024, 27 February 2024 and concluded on 1 March 2024.

Parties' Position On The Merits

a. The Claimant

[6] The Claimant was appointed as a Driver with the Company on 6 January 2022. Prior to the said appointment, the Claimant had also been a Driver on a part-time basis with the Company from November to December 2021.

[7] The Claimant was involved in a scuffle due to a third party/ex-colleague's, ie Ahmad Firdaus Bin Ahmad Nazri (COW-4) anger, aggression and assault resulting in physical injury and blood shed at about 1.30pm on 12 September 2022 at the smoking area of the Company.

[8] The Claimant was given a suspension and Show Cause Letter dated 13 September 2022 and on the very same day, the Claimant had responded detailing the incident and his actions which had been on the basis of self-defence, highlighting the situation pre, during and post scuffle with COW-4.

[9] The Claimant and COW-4 were required to attend a Domestic Inquiry on 20 September 2022. The Claimant attended the said Domestic Inquiry from about 9.30am to 10.00am before being immediately handed over the Termination Letter by the Company via its Senior Finance & Admin Manager, ie Kim Yongman (COW-1).

[10] The Claimant contends that the termination is unlawful without just cause or excuse and prays that he be reinstated to work at the Company.

b. The Company

[11] Pursuant to a Contract of Employment, the Claimant was appointed as a Driver on 6 January 2022, which was clearly for a fixed term basis of 1 year with a monthly basic salary of RM2,900.00 wherein this was clearly understood and agreed by the Claimant before signing the employment contract.

[12] On 12 September 2022 around 1.30pm, the Claimant got into a physical fight with a co-worker, ie COW-4, at the smoking area in the Company's premises at the construction site located at Pulau Indah, Klang. On the said date, the Claimant had arrived late for work and En Muhammad Rusydan (General Affairs) directed COW-4 to replace the Claimant to carry out the duties as a driver. Nevertheless, after COW-4 had performed the duties that were supposed to be carried out by the Claimant, COW-4 had verbally informed the Claimant that as the Claimant was late to work on the said date, COW-4 had to replace the Claimant and pursuant to that a verbal fight had ensued which then turned into a physical fight. During the said fight, COW-4 and the Claimant were shouting, pushing and/or hitting each other, and this was witnessed by Mr Haebum Lee (COW-3; Mechanical Engineer), En Amar Zaim (QC Mechanical) and Mr Yuvan Raj Kaundar (HSE Assistant).

[13] Pursuant to the said physical fight between COW-4 and the Claimant, En Amar Zaim and COW-3 had attempted to stop the said fight and separate both of them. Despite the said physical fight being stopped, both the Claimant and COW-4 had sustained injuries.

[14] Vide Suspension and Show Cause Letter dated 13 September 2022, the Company had suspended the Claimant for 14 days starting from 13 September 2022 to 27 September 2022 as the Claimant was deemed to have violated and breached the Company's Employment Regulations (Clause 33 (d)) and the Zero Tolerance Pol