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2023 MarsdenLR 268
INDUSTRIAL COURT KUALA LUMPUR
HASMIZAWANI MOHAMMAD – Appellant
Versus
KOPERASI PEGAWAI-PEGAWAI MELAYU MALAYSIA BERHAD (MOCCIS) – Respondent
Award No: 2401 Of 2023 [Case No: 11(3)(15)(6)(14)/4-2489/20]
Dismissal without just cause occurs when an employer fails to prove allegations against an employee, placing the burden of proof on the employer.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant terminated for alleged misconduct without just cause - Company failed to prove charges against Claimant on balance of probabilities - Dismissal deemed unjustified. (Paras 35, 41)
(B) Burden of proof - It is the employer's responsibility to demonstrate that dismissal was with just cause or excuse, failing which dismissal is deemed unjustified. (Paras 20, 22)
Facts of the case:
The Claimant was employed by the Company since 2000 and was dismissed on 17 January 2020 for alleged serious misconduct related to loan repayments and providing false information. The Claimant contended that the dismissal was unjustified and without proper inquiry. (Paras 6, 14)
Findings of Court:
The Court found that the Company did not provide sufficient evidence to substantiate the allegations against the Claimant, concluding that the dismissal was without just cause or excuse. (Paras 35)
Issues: The main issues were whether the Claimant's dismissal was justified and whether the Company had adhered to proper procedures in handling the termination. (Paras 20, 22)
Ratio Decidendi: The court emphasized that the burden of proof lies with the employer to demonstrate just cause for dismissal, and without adequate evidence, the dismissal cannot be upheld. (Paras 20, 35)
Result: The Claimant's dismissal was ruled unjust, and the Company was ordered to pay compensation totaling RM76,454.00. (Paras 41)
| Table of Content |
|---|
| 1. case reference and factual background (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. company's arguments for dismissal (Para 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. claimant's defense and counterarguments (Para 14 , 15 , 16 , 17) |
| 4. court's role and burden of proof (Para 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 5. analysis of charges against the claimant (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 6. finding of dismissal without just cause (Para 35) |
| 7. court's order and compensation (Para 36 , 37 , 38 , 39 , 40) |
Reference
[1] This is a reference dated 7 October 2020 by The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 [Act 177] in respect of the dismissal of Hasmizawani Binti Mohammad ("the Claimant") by Koperasi Pegawai-Pegawai Melayu Malaysia Berhad (MOCCIS) ("the Company") on 17 January 2020.
[2] This case was previously tried and concluded by the former Chairman of Court 15, Yang Arif Tuan Iznan Ishak who had since retired from the Industrial Court. This case has now been transferred to this Court and I have been requested to prepare and deliver the Award for this case.
[3] Subsection 23(6) of Act 177 provides that during the absence of 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. This Court, relying on subsection 23(6) of Act 177 and the principles laid down in the High Court case of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh and Anor ; ; [2011] 2 ILR 251, hands down the Award for this Case.
[4] In handing down this Award the following were considered by the Court:
(a) the record of proceedings;
(b) the notes of proceedings prepared by the former Chairman;
(c) Statement of Case dated 16 December 2020;
(d) Statement in Reply dated 9 April 2021;
(e) the Claimant's Bundle of Documents marked as CLB;
(f) the Company's Bundles of Documents marked as COB1, COB2, COB3, COB4 and COB5;
(g) the Claimant's Written Submissions dated 10 March 2023;
(h) the Company's Written Submissions dated 10 March 2023;
(i) the Claimant's Submissions in Reply dated 31 March 2023; and
(j) the Company's Submissions in Reply dated 27 March 2023.
[5] The Company called three (3) witnesses ie Prof Madya Mohd Salleh Bin Mohamed ("COWS-1"), Gurdial Singh A/L Atma Singh ("COWS-2") and Lt Cdr (R) Ir Haji Mohd Ismail Bin Che Mat Din ("COWS-3"). Whilst the Claimant testified as the sole witness in this Case.
Background Facts
[6] Based on the pleadings and bundles of documents, this Court takes note of the following:
(a) the Claimant was employed at the Company on 1 March 2000 as a Clerk and subsequently as a permanent clerk commencing from 1 October 2000. The Claimant's terms and conditions of employment were stipulated in the letter of offer dated 24 August 2000;
(b) the Claimant was employed at the Company until her termination on 17 January 2020. During her tenure of employment at the Company, the Claimant had served in various divisions and department in the Company, inter alia, Membership and Loans Division, Finance & Accounts Division, Business & Technology Division, Marketing, Business & Investment Division and Collection and Litigation Department;
(c) the Claimant was terminated on 17 January 2020 vide letter dated the same day which was signed by COWS-1, Executive Chairman on behalf of the Company; and
(d) the Claimant's last drawn salary was RM1,778.00 per month.
The Company's Case
[7] The Company contends that the Claimant was dismissed from her employment as she had committed a serious misconduct and did not act in the best interest of the Company and / or act in a manner detrimental to the interests of the Company. Following thereto, the Company's termination of Claimant's employment was done with just cause or excuse.
[8] The Company further contends that the Claimant had signed a Letter of Undertaking in relation
