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2010 MarsdenLR 1049
INDUSTRIAL COURT KUALA LUMPUR
AHMAD NORDIN MOHAMMAD – Appellant
Versus
SYMMID CORPORATION SDN BHD – Respondent
Award No: 1261 Of 2010 [Case No: 12(1)/4-1175/07]
Wilful disobedience to lawful orders constitutes serious misconduct, justifying dismissal under employment law principles.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee for insubordination - The Claimant's termination was based on allegations of willful disobedience regarding the transfer of employee files to Human Resources. The court found sufficient evidence that the Claimant failed to comply with lawful orders from the CEO and Board of Directors. Issues of compliance and the validity of instructions were pivotal in determining the nature of the dismissal. (Paras 5, 12, 16-17)
(B) Dismissal - Just cause - The court concluded that the Claimant's actions constituted serious misconduct allowing for dismissal under the principles of natural justice. The burden of proof remained on the employer to show just cause for dismissal, which was satisfied. (Paras 23-27)
Facts of the case:
The Claimant served as CFO, was dismissed for not transferring employee files as directed, leading to a series of inquiries and a domestic inquiry. His last salary was RM 13,000.
Findings of Court:
The Claimant failed to comply with lawful directives resulting in the conclusion that his dismissal was justified. The domestic inquiry was upheld as valid despite the Claimant’s challenges to its findings.
Issues: Whether the Claimant's dismissal was with just cause or excuse; the validity of the orders issued by the CEO and Board of Directors.
Ratio Decidendi: The court established that employees must comply with lawful orders; failure to do so can justify dismissal. The inquiry results and compliance with management directives were critical in determining the nature of the dismissal.
Result: Claimant's claim dismissed.
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| 1. this is a reference under section 20 of the industrial relations act regarding dismissal. (Para 1 , 2 , 3) |
This case was first heard by Y. A. Dato' Umi Kalthum binti Abdul Majid, the former President of the Industrial Court on 24 November and 25 November 2008. She completed hearing the evidence of the Company's witness. Y.A. Dato' Urni was elevated as Judicial Commissioner of the High Court Malaya and the case was continued by her successor, Y.A. Puan Amelia Tee Hong Geok who heard the evidence of the Claimant on 29 April 2009 and 24 June 2009 and fixed for continuation of re-examination of the Claimant on 2 September 2009. However, on 16 August 2009, Y.A. Puan Amelia was elevated as Judicial Commissioner of High Court Malaya and on the 7 December 2009 the case was transferred to this Court by the learned President of the Industrial Court. On 19 January 2010, both parties agreed that this Court to continue hearing the case and the Claimant's Counsel completed his re-examination of the Claimant on 1 March 2010.
Brief Facts of the Case
The Claimant was appointed as the Chief Financial Officer of MIDCorp Partnership Sdn. Bhd. from 16 December 2002. He was transferred to the Company with effect from 1 January 2004 on the same terms and conditions. His last drawn salary was RM13,000.00 per month.
On 7 March 2006 the Chief Executive Officer of the Company, Dr. Fatehy EI-Turky issued the Claimant a "Notification of a Serious Violation of Your Terms of Employment" (COB1 pages 8-9). He was instructed to immediately transfer all the employees' files including all Senior Managers and all related matters to payroll to the Head of Human Resource Department headed by Puan Syafinaz (COW1). The letter states:
This notification was replied by the Claimant vide letter dated 10 March 2006 (CLB-1 pages 19-21). The salient facts in this letter are as follows:
1) Claimant denied any knowledge of the Board of Director's (BoD) resolution with respect to the establishment of a separate Human Resource Department. The Board of Director's resolution of the same was not furnished to him.
2) Any changes in the organisation structure involving division/department heads had to be sanctioned by the Board of Director. Claimant claimed that the CEO had unilaterally "promoted" COW-1, Puan Syafinaz a Senior Executive of Human Resource and Administration, who was not even a junior manager then, as "Head Human Resource Department" against the BoD's approved Discretionary Authority Limit. Claimant was not informed of the reasons nor were there any discussions for the sudden change in portfolio.
3) The BoD via its Director's Resolution in writing dated 21 September 2005 had appointed its Director, Shahril Anwar bin Mohd. Yunos as its Acting Chief Executive Officer and the resolution still remain in force as the Claimant as a member of the senior management team was not informed otherwise. Therefore, Dr. Fatehy was no longer the CEO of the Company from 21 September 2005 until to date and all Company matters purportedly transacted by him as CEO were ultra vires .
4) Due to Claimant's hajj leave from 31 December 2005 to 10 February 2006, Claimant trained Puan Syafinaz on how to process the monthly payroll starting from October 2005. However, Claimant still maintains the senior management level payroll due to the private and confidentiality nature of salary matters since Syafinaz not being a member of the management team was not privy to this sensitive information.
5) If Syafinaz requires sighting the individual personnel files of the senior management, she could access his office room by asking for the keys from either Sh
