The standard for dismissal for misconduct is evaluated on balance of probabilities, with the court affirming the employer's justification for termination.

Ahmad Zakhi Mohd Daud

Reference

[1] This is a reference made under s 20 (3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of Mohamed Aboubakrelsedik Abdelnaser Abdelbaky ("Claimant") by Scomi Oiltools Sdn Bhd ("Company") on the 28 May 2020.

[2] The Ministerial reference in this case required the court to hear and determine the Claimant's complaint of dismissal by the Company on 28 May 2020.

Background

[3] The dispute before this court is the claim by the Claimant that he had been dismissed from his employment without just cause or excuse by the Company on the 28 May 2020.

[4] By a letter of offer dated 26 June 2013, the Claimant was offered employment with the Company as a Manager - Technical Training. The Claimant was confirmed on the 1 February 2014. The Claimant's last drawn salary was RM11,667.00.

[5] On the 13 May 2020, the Company issued a suspension letter to the Claimant pending an investigation into Claimant's admissions in producing fake documents and having evidence "of darkest and deepest secret" where the Company had been deceiving its clients since 2014 through an email dated 12 May 2020.

[6] On the 15 May 2020, the Company convened an Inquiry against the Claimant for the alleged misconducts which are as follows:

(a) falsifying and/or an attempt to falsifying company's information/records and/or documents with an intention to deceive clients;

(b) dispersing and/or attempting to disperse fake information/documents to deceive clients;

(c) attempt to deceive and defraud the company by misuse of company's asset (IT facility) for personal gain; and

(d) attempting to defraud and claim ransom from the company for personal gain.

[7] On the 28 August 2020, the Company issued a termination letter to the Claimant stating that he had committed very serious misconduct as alleged.

The Duty Of The Industrial court

[8] The Supreme court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988] 1 MLJ 92 held that:

"When the Industrial court is dealing with a reference under s 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse."

[9] The Federal court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, 1981 MarsdenLR 117 held that:

"Where representations are made and are referred to the Industrial court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse"

The Standard Of Proof

[10] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, 2002 MarsdenLR 1640 , the court laid down the principle that the standard of proof that is required is one that is on the balance of probabilities.

"Thus in hearing a claim of unjust dismissal, where the employee was dismissed on the basis of an alleged criminal offence such as theft of company property, the Industrial court is not required to be satisfied beyond a reasonable doubt that such an offence was committed. The standard of proof applicable is the civil standard, ie, proof on a balance of probabilities which is flexible so that the degree of probabi