An employee engaging in conflicting business while employed constitutes serious misconduct justifying dismissal.

Rosenani Abd Rahman:

Brief Facts

[1] The Claimant commenced employment with the Company as General Manager (QHSE) on 01 August 2006 and his position was later confirmed on 15 February 2007 with a basic salary of RM18,000.00. Refer to the Letter of Appointment dated 14 June 2006 and Letter of Confirmation on 15 February 2007 (pp 4 - 11 of COB). The Company provided the Claimant with a Company car, a fuel fleet card usage up to a maximum of RM1,000.00 per month and also a Company handphone. The Claimant report directly to the Chief Operating Officer (COO). The Claimant was in charge of the overall quality, health and safety aspect of the Company and its group of Company.

[2] Around early March 2009 the Company CEO Datuk Shahrazi (COW1) had received information in the form of a printed email indicating that the Claimant was actively pursuing his own personal business opportunities in conflict with his employment with the Company. It was also discovered that the Claimant was allowing members of his family to use the Company car and petrol card.

[3] Pursuant to that a show cause letter was served on the Claimant on 03 March 2009 during a meeting that was held between the Claimant, COW1 and Mr Daniel (COW2). Refer to pp 12 to 13 of COB. The Claimant was instructed to reply two allegations of misconduct:

i) pursuing personal business opportunities together with another Company named Cekap Technical Services Sdn Bhd and;

ii) improper use of Company vehicle and petrol card.

[4] The Claimant replied to the said show cause letter vide letter dated 11 March 2009 denying those allegations (refer to pp 14-17 COB). In respond to that letter the Company issue a letter dated 16 March 2009 where in among others informed the Claimant that he was suspended from his duties pending the outcome of DI and the charge sheet dated 16 March 2009 was attached to the letter (refer to pp 18-21 COB). As per the letter dated 24 March 2009 the hearing date for DI was amended from 23 February 2009 to 23 March 209 as it was wrongly typed in the earlier notice.

[5] The Company appointed its General Manager - Finance, Mr Yan Ying Chieh to conduct an internal investigation against the Claimant which took place on 18 and 19 March 2009. An investigation report was subsequently produced on 20 March 2009 (refer pp 22-79 COB). On the 23 March 2009 the Claimant was absence and the DI was proceeded whereby testimonies of 2 witnesses were recorded. The DI was then adjourned to 03 April 2009 to allow a formal notice to be issued to the Claimant and to give him the opportunity to be heard and defend himself (refer to letter dated 24 March 2009 at pp 80 - 81 COB). The Claimant was informed if he failed to attend, the DI would be proceeded ex parte. The Claimant was again failed to appear on 03 April 2009 and accordingly the DI proceeded in his absence.

[6] At the conclusion of the DI, the panel of inquiry found the Claimant guilty of both charges of misconduct and in view of the same the panel recommended that the Claimant be dismissed. By a letter dated 07 April 2009 the Claimant was informed that he was found guilty of the 2 serious misconduct and was dismissed with effect from the date of the letter (pp 1 to 2 COB).

The Law

[7] The role of the Industrial Court is succinctly explain in the case of Milan Auto Sdn Bhd v. Wong She Yen , 1995 MarsdenLR 293 :

"As pointed out by this Court recently in Wong Yen Hock v.Syarikat Hong Leong Assurance Sdn Bhd & Anor, [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s 20 is twofold, firstly to determine whether the miscon