The court affirmed that dismissal for theft requires the employer to prove misconduct on the balance of probabilities, which was established through CCTV evidence and testimonies.

AWARD

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 Gopala Krishna A/L Kanniappan (Claimant) by RHB Bank Berhad (Company) on the 26 January 2021.

[2] The Director General's reference in this case required the court to hear and determine the Claimant's complaint of dismissal by the Company on 26 January 2021.

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

(a) Statement of Case dated 4 February 2022;

(b) Statement in Reply dated 18 March 2022;

(c) Rejoinder dated 15 April 2022;

(d) Claimant's Bundle of Documents - CLB-1, CLB-2, CLB-3, CLB-4, CLB-5;

(e) Company's Bundle of Documents - COB-1, COB-2, COB-3, COB-4, COB-5, COB-6, COB-7,COB-8A, COB-8B-8D, COB-9, COB-10, COB-11, COB-12;

(f) Claimant's Witness Statement - CLW-1SA, CLW-1SB (Gopala Krishna);

(g) Company's Witness Statement - COW-1S (Nur Atikah bt Yunos), COW-2S (Faressa Alina bt Mohd Sujak), COW-3S (Noraini bt Tulimin), COW-4S (Mohd Fadzil b Ahmad), COW-5S (Chandran Selvarajah), COW-6S (Goh Xin Jie);

(h) Company's Written Submission and Reply; and

(l) Company's Bundle of Authorities.

The Claimant did not file in their written submission although he has been directed to do so by the court.

Background

[4] The dispute before this court is the claim by the Claimant that he had been dismissed from his employment by the Company on 26 January 2021 without just cause or excuse.

[5] On 1 March 2019, the Company promoted the Claimant to the position of Team Lead Manager.

[6] On 2 December 2020, the Company suspended the service of the Claimant pending an investigation into an alleged serious misconduct by the Claimant.

[7] On 7 January 2021, the Company notified the Claimant by letter that it intended to take disciplinary action against the Claimant for his serious misconduct as reported in the said letter and informed the Claimant that he may provide the Company any ground to refute and/or rebut the decision to be taken including any factors of mitigation for the Company's consideration.

[8] On 18 January 2021, the Claimant replied to the Company's letter/notice of intended disciplinary action.

[9] On 26 January 2021, the Company notified the Claimant that the Group Disciplinary Committee (GDC) views his action constituting a major misconduct as it reflects considerable doubt on his honesty and integrity, which also amounts to an act abuse of his position of trust. As such, the Company could no longer repose the necessary trust and confidence in him to perform his duties faithfully, honestly, and with integrity as well as it may tarnish the reputation of the Company and therefore he was dismissed with immediate effect. The Claimant's last drawn salary was RM8,7000.00 basic salary.

The Duty Of The Industrial court

[10] The Supreme court in the case of Wong Chee Hong v. Cathay Organisation Malaysia 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."

[11] 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

[12] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, 2002 MarsdenLR