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2022 MarsdenLR 195
INDUSTRIAL COURT OF MALAYSIA SABAH
MOHD SHERMAN NABIEL ABDUL BASIT – Appellant
Versus
PETRONAS DAGANGAN BERHAD – Respondent
Award No: 2527 Of 2022 [Case No: 17/4-900/18]
Dismissal of employee without just cause warrants compensation; proportionality in disciplinary measures hinges on employee's conduct and tenure.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – Claimant dismissed by PETRONAS Dagangan Berhad for alleged misconduct – Claims of false reimbursement, conflict of interest, and abuse of position established – Court found dismissal was without just cause or excuse; thus, award for compensation in lieu of reinstatement made. (Paras 84-102)
(B)
Duty of Industrial Court – The Court must determine if dismissal was with just cause; burden of proof lies with employer. (Paras 12-16)
(C)
Proportionality of punishment – Due consideration given to employee's long service and absence of prior disciplinary issues; dismissal deemed disproportionate relative to misconduct. (Paras 73-78)
Facts of the case:
The Claimant, employed since 1997, was dismissed on 3 April 2017 following charges of misconduct based on reimbursement claims and conflict of interest with contractors. Company argued dismissal was lawful; Claimant contended it was without just cause.
Findings of Court:
Dismissal found to be without just cause; appropriate remedy was compensation, not reinstatement.
Issues
: Whether termination was lawful with just cause; whether the punishment was proportionate.
Ratio Decidendi:
Claimant’s dismissal was disproportionate when considering the nature of his misconduct and his clean prior record.
Result:
Award of RM502,040.00 as compensation for dismissed employee.
AWARD
A. Reference
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of MOHD SHERMAN NABIEL BIN ABDUL BASIT (hereinafter referred to as "the Claimant") by PETRONAS DAGANGAN BERHAD (herein referred to as "the Company").
B. Preface
[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal by the Company.
[3] The Claimant was employed by PETRONAS since 1 April 1997. By letter dated 1 October 2016, the Claimant was seconded by PETRONAS to the Company as the Executive (Operations), Engineering, Construction & Maintenance, Retail Engineering Department, Retail Business Division with effect from 16 October 2016 and he was based in the Company's Site Office in Kota Kinabalu, Sabah. The Claimant was subject to PETRONAS' terms and conditions during his secondment.
[4] Based on the Show Cause letter dated 9 September 2016, the Company had sought the Claimant's explanation of an alleged misconducts.
[5] After reviewing the Claimant's reply to show cause dated 20 September 2016, the Company decided to conduct a Domestic Inquiry in order to provide the Claimant an opportunity to further render his explanation before an independent Panel of Inquiry.
[6] A Domestic Inquiry was held on 22 December 2016, 23 December 2016 and 12 January 2017. The Claimant was found guilty by the Panel of Domestic Inquiry on the 1st, 2nd and 3rd Charges:
1st Charge:
"That you, Mohd Sherman Nabiel Bin Abdul Basit (S/N 102359) in your capacity as_Executive (Operations), Engineering, Construction & Maintenance, Retail Engineering Department, PETRONAS Dagangan Berhad ("PDB") via your submission of reimbursement claims under TVM No 33005512 dated 2 December 2015 for attending SKG19 Refresher Training at PDB Training Centre, Shah Alam had attached a receipt amounting to RM120 for a trip to and from Menara Duta and s 26, Shah Alam dated 26 October 2015 which was believed to be false, hence tantamount to submission of false claim to the Company. By the aforesaid act, you have violated:
i. The generality of s 1 - Importance of Good Conduct and Discipline, Part IV Discipline, Disciplinary Process and Sanctions of PETRONAS Code of Conduct and Business Ethics (CoBE); and/or
ii. The generality of s 17 - Internal Controls & procedure, Part 11 E - Financial Integrity of CoBE; and/or
iii. Other express and/or implies terms of your employment.
In the event you are found guilty of the said misconduct, you will be liable for punishment as provided under s 2 of Part IV: Disciplinary Process & Sanctions, Country Supplement: Malaysia of CoBE"
2nd Charge:
"That you, Mohd Sherman Nabiel Bin Abdul Basit (S/N 102359) in your capacity as Executive Operations (Sabah), Engineering, Construction & Maintenance, Retail Engineering Department, PETRONAS Dagangan Berhad had failed to avoid a Conflict of Interest situation when you traveled to Danok, Thailand through Bukit Kayu Hitam entry-point on 17 April 2015 and spent two nights before returning back to Malaysia on 19 April 2015 with PDB contractors during an ongoing tender for PSS station upgrading works where the same contractors were involved and attended the TechnoCommercial Clarification Meeting ("TCCM") on 16 April 2015 at Room 3608, Level 36, Tower 1, PETRONAS Twin Towers in which you were the technical representative for PDB during the TCCM. The details of the contractors are as follows: 1. Mr Melvin Koo Zheng Xun Assistant Operations / Strive Force Equipment & Engineering Sdn Bhd 2. Mr Tan Tiaw Huew Construction Manager / Pembinaan Chen Hing Sdn Bhd By the aforesaid act, you have violated:
i. The generality of s 1 - Duty Regarding Avoidance of Conflict of Interest, Part II A: Conflict of Interest, Part II: Duties of Good Faith, Fidelity, Diligence and Integrity, PETRONAS' Code of Conduct and Business Ethics (CoBE); and/or
ii. The generality of s 1 - Importance of Good Conduct
