The employer must prove just cause for dismissal, supported by evidence, and the standard of proof is on the balance of probabilities.

The Reference

[1] This is a reference dated 15 June 2021 by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of MOHD NAZRI BIN MOHD DAUD (Claimant) by CONTINENTAL TYRE PJ MALAYSIA SDN BHD (Company) on the 23 November 2020.

[2] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions dated 10 July 2023 (Claimant's written submissions), 10 July 2023 (Company's written submissions), 24 July 2023 (Claimant's written submissions in reply) and 24 July 2023 (Company's written submissions in reply).

[3] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:

(i) The Claimant's Statement of Case dated 4 January 2022;

(ii) The Company's Statement in Reply dated 4 February 2022;

(iii) The Claimant's Rejoinder dated 22 February 2022;

(iv) The Claimant's Document - CL1;

(v) The Company's Bundles of Documents - COB1, COB2, & COB3 (CCTV Recording);

(vi) The Claimant's Witness Statement - CLW - WS (1) & (2) (Mohd Nazri Bin Daud);

(vii) Company's Witness Statement - COW1-WS (Abdul Muhaymin Bin Razawi);

(viii) Company's Witness Statement - COW2 - WS (Mohd Faizal Bin Md Abul Mansur);

(ix) Company's Witness Statement - COW3 - WS (Noor Azillah Binti Sabar);

Introduction

[4] The dispute before this Court relates to the claim by Mohd Nazri Bin Mohd Daud ("Claimant") that he was dismissed from his employment without just cause or excuse by Continental Tyre PJ Malaysia Sdn Bhd ("the Company") on the 23 November 2020.

[5] The Company is an International Manufacturer of motor vehicle tyres and due to the raw materials used in its manufacturing process which are flammable, the Company has strict rules and regulations on safety standards. The Claimant commenced employment with the Company on 23 April 2001 as an employee of the operative group with a monthly basic salary of RM600.00. There is no dispute that the Claimant was a confirmed employee of the Company.

[6] On 27 October 2020, the Claimant was allegedly found smoking in a non-smoking area known as Downstream Mixer 2 which act of the Claimant the Company considers as a serious misconduct. In view of this alleged misconduct of the Claimant, the Claimant was issued a show cause letter and suspended from work for 2 weeks. The Claimant offered his explanation for this alleged misconduct which the Company found unsatisfactory. Subsequently, the Company held a domestic inquiry (DI) on the 11 November 2020 to give the Claimant the opportunity to defend himself against a charge of misconduct for smoking in a prohibited area in the Company. After the completion of the DI, the Claimant was subsequently found guilty of the charge preferred against him. The Company dismissed the Claimant due to the Claimant's misconduct of smoking in the prohibited area. The Claimant denies smoking in the prohibited area and maintains his innocence and now states that he was dismissed without just cause or excuse. The Claimant prays that he be reinstated to his former position in the Company without any loss of wages and other benefits. The Company maintains that the Claimant was dismissed on account of his serious misconduct and states that the dismissal of the Claimant was with just cause or excuse. The Company prays that