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2023 MarsdenLR 36
INDUSTRIAL COURT KUALA LUMPUR
KEVIN HO KIN KEE – Appellant
Versus
HENGYUAN INTERNATIONAL SDN BHD – Respondent
Award No: 2382 Of 2023 [Case No: 3/4-834/20]
Dismissal without just cause requires the employer to substantiate claims of poor performance; failure to do so results in entitlement to backwages and compensation.
Headnote:(A) Industrial Relations Act 1967 - Subsections 20(3) and 30(6A) - Dismissal of employee without just cause - Claimant dismissed as Finance Manager without reasons, later claimed underperformance - Court finds dismissal was without just cause due to failure of employer to substantiate claims of poor performance - Employee entitled to backwages and compensation in lieu of reinstatement. (Paras 1, 13, 39, 46, 50)
(B) Burden of Proof - The employer must prove the grounds for dismissal on the balance of probabilities, especially in cases of poor performance. (Paras 9, 21, 30)
(C) Clean Hands Doctrine - Both parties must come to equity with clean hands; the employer failed to provide necessary warnings and documentation regarding performance issues. (Paras 32, 37)
(D) Remedy - The Court awarded backwages for 15 months and compensation in lieu of reinstatement based on statutory provisions. (Paras 40, 49)
| Table of Content |
|---|
| 1. dismissal details and claims (Para 1 , 2 , 3 , 4) |
| 2. court's role and chairperson change (Para 5 , 6 , 7 , 8) |
| 3. burden of proof standards (Para 9 , 10 , 11 , 12) |
| 4. termination without just cause (Para 13 , 14 , 15 , 16) |
| 5. company's justification for dismissal (Para 19 , 20 , 21 , 22 , 23) |
| 6. company's failure to follow policies (Para 24 , 25 , 26 , 27 , 28 , 29) |
| 7. clean hands doctrine application (Para 32 , 33 , 34 , 35 , 36 , 37) |
| 8. final award and compensation (Para 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49) |
Reference
[1] This is a reference dated 5 July 2020 made by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Kevin Ho Kin Kee ("the Claimant") by Hengyuan International Sdn Bhd ("the Company") on 25 September 2019.
Brief Facts
[2] The Claimant was appointed as a Finance Manager by the Malaysia Hengyuan International Limited on 2 April 2018 via a letter dated 14 March 2018. The Claimant was confirmed in service via letter dated 1 July 2018. Subsequently, the Claimant was transferred to the Company on 1 June 2019. The Claimant was terminated via a letter dated 18 September 2019 with effect on 25 September 2019 with compensation in lieu of notice as per the Letter of Offer. Initially no grounds were given in the termination letter.
[3] The Claimant filed a representation to the Minister of Human Resources and the Minister duly issued the referral on 5 July 2020 claiming that he was terminated without just cause or excuse.
[4] The Company initially claimed that the Claimant was terminated contractually without providing any reason. However, after a query from the Claimant, the Company stated that the Claimant was under performing and that was why the Claimant was terminated.
[5] The Court has gone through the evidence as given through testimony in Court and the documents and submission that have been filed. Those documents and submissions are listed for ease of reference as follows:
(i) Statement of Case dated 24 August 2020;
(ii) Statement in Reply dated 15 June 2022;
(iii) Rejoinder dated 21 July 2022;
(iv) Claimant's Bundle of Documents filed on 25 August 2020 marked as exhibit CLB-1;
(v) Claimant's Bundle of Documents (2) filed on 21 July 2022 marked as exhibit CLB-2;
(vi) Claimant's Bundle of Documents (3) filed on 1 March 2023 marked as exhibit CLB-3;
(vii) Claimant's Bundle of Documents (4) filed on 7 March 2023 marked as exhibit CLB-4;
(viii) Company's Bundle of Documents filed on 15 June 2022 marked as exhibit COB-1;
(ix) Company's Additional Bundle of Documents filed on 16 February 2023 marked as exhibit COB-2;
(x) Witness Statement signed on 7 March 2023 marked as exhibit CLWS-1A;
(xi) Supplementary Witness Statement signed on 7 March 2023 marked as exhibit CLWS-1A;
(xii) Company's Witness Statement signed on 7 March 2023 marked as exhibit COWS-1;
(xiii) Company's Written Submission dated 24 May 2023;
(xiv) Company's Bundle of Authorities filed on 25 May 2023;
(xv) The Claimant's Written Submissions dated 24 May 2023;
(xvi) Claimant's Bundle of Authorities filed 25 May 2023;
(xvii) Company's Written Submission in Reply dated 7 June 2023; and
(xviii) The Claimant's Written Submissions in Reply dated 7 June 2023.
The Decision
The Chair And The Role Of The Court
[6] Before proceeding with the full award, it should be expressly stated that the original Chairperson of the Court has been transferred and this award is being given by the new Chairman. Nonetheless, this Court has already decided in earlier cases its position regarding the issue of taking over from another Chair, some of those cases are the cases of Badariah Abdullah lwn. Malaysia Airports (Sepang) Sdn Bhd , Nor Azlina Abd Rahim lwn. Jurukur Perunding Services Sdn Bhd and Chong Jee Fatt v. Tee E & C (Malaysia) Sdn Bhd ; [2023] 3 ILR 204. In those awards this Court referred to the case of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam S
