The dismissal of an employee for sexual harassment is justified when the employer follows due process and establishes just cause based on the severity of the misconduct.

AWARD

Eswary Maree:

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (1967 Act) by the Honourable Minister of Human Resources, emanates from the dismissal of Azizan bin Shafie ("the Claimant") by Amanah Ikhtiar Malaysia ("the Company") on 29 January 2020.

Preamble

[2] This case was partly heard before the Learned Chairman Tuan Teoh Chin Cheong and upon the exist of the said Learned Chairman from the Industrial Court , the hearing was continued before me. With this regard, s 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 s 23(6) of the Act 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. Sukhdev Singh Pritam Singh & Anor; 2010 MarsdenLR 948 ; [2011] 2 ILR 251; 2010 MarsdenLR 686 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 20 December 2021;

(ii) Statement in Reply dated 4 January 2022;

(iii) Rejoinder dated 5 January 2022;

(iv) Claimant's Bundle of Documents: CLB-1;

(v) Company's Bundle of Documents: COB-1;

(vi) Witness Statement of the Claimant, Azizan bin Shafie: CLWS-1;

(vii) Witness Statement of Rosli bin Rohman: COWS-1;

(viii) Witness Statement of Farah Ali: COWS-2;

(ix) Witness Statement of Suhada Hassan: COWS-3;

(x) Witness Statement of Nadrahtun Naim binti Mgat Meze: COWS-4;

(xi) The Claimant's Submission dated 19 May 2023;

(xii) The Company's Written Submission dated 25 September 2023;

(xiii) The Company's Written Submission In Reply dated 9 October 2023; and

(xiv) The Claimant's Submission In Reply dated 9 October 2023

The Claimant's Case

[5] The Claimant's pleaded case can be summarised as follows:

(i) The Claimant commenced employed with the Company on 14 February 1994 as a Trust Assistant Trainee and the Claimant was given a letter of appointment containing the terms and conditions of service.

(ii) On 1 March 1995 the Claimant held the position of Permanent Trust Assistant and from 15 July 204 to 30 June 2005 he held the position of Assistant Trial Manager.

(iii) The Claimant's last position with the Company from 1 August 205 to 29 January 2020 is Permanent Branch Management.

(iv) The Claimant asserts that during his employment with the Company, he has carried out his duties and functions diligently in the best interests of the Company.

(v) The Claimant also asserted that throughout his service with the Company until his dismissal, he had served as an Executive Officer (Permanent) at the West Pahang Regional Office.

(vi) The Claimant has received a substantive suspension notice and a temporary placement notification letter as an Executive Officer at the West Pahang Regional Office from the Company effective from 3 July 2019 to 17 July 2019.

(vii) Through a letter dated 16 July 2019, the Claimant's suspension was extended until 31 July 2019. Thereafter the Claimant's suspension was further extended from 1 August 2019 to 14 August 2019 and from 15 August 2019 to 28 August 2019.

(viii) On 20 August 2019, the Claimant received a show-cause letter from the Company with nine (9) allegations of wrongdoings for him to provide a written response on or before