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2021 MarsdenLR 3310
INDUSTRIAL COURT KUALA LUMPUR
HARRY WONG WEI CHEN – Appellant
Versus
PETROLIAM NASIONAL BERHAD (PETRONAS) – Respondent
Award No: 3 of 2021 [Case No: 22/4-818/19]
The series of workplace and sexual harassment incidents by the claimant established just cause for dismissal under the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal – Allegations of misconduct related to workplace harassment and sexual harassment proven on balance of probabilities – Charges (a), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) substantiated; Charges (b) and (c) not proven – Dismissal deemed justified due to severity of misconduct. (Paras 112-138)
Facts of the case: The claimant was dismissed on allegations of misconduct involving repeated instances of workplace and sexual harassment against a subordinate. The Court meticulously evaluated the evidence presented during the domestic inquiry and subsequent hearings.
Findings of Court: The claimant's actions were established as serious breaches of conduct making him unfit for continued employment. The harassment undermined the trust placed by the employer.
Issues: Determination of the veracity of the misconduct allegations and justification for the dismissal.
Ratio Decidendi: The Court found a consistent pattern of misconduct substantiated by witness testimonies, supporting the dismissal's justification under the prevailing legal standards on workplace conduct and harassment.
Result: Claimant's dismissal upheld.
[1] The Ministerial reference in this case required the Court to hear and determine the claimant's complaint of dismissal by the Company on 18 October 2018.
I. Procedural History
[2] The Court received the letter pertaining to the Ministerial reference under s 20(3) of the Industrial Relations Act 1967 on 16 May 2019.
[3] The matter was fixed for mention on 18 June 2019, 23 July 2019, 6 August 2019, 20 August 2019, 3 September 2019, 11 October 2019, 8 November 2019, 20 December 2019, 7 January 2020, 12 August 2020, 26 August 2020 and 9 September 2020.
[4] The trial proceeded on 30 January 2020, 4 February 2020, 22 July 2020, 14 September 2020 and concluded on 15 September 2020.
[5] The identity of the complainant will be kept confidential in this Award and she will be referred to as "COW1", she being the Company's first witness.
II. Factual Background
[6] The claimant commenced employment with Petronas Carigali Sdn Bhd, a wholly owned subsidiary of the Company, with effect from 1 March 2007 as an Executive (Geoscience).
[7] At the date of his dismissal on 18 October 2018, the claimant's last held designation in the Company was as a Staff (Petroleum Geosciences), in the Middle East & Central Asia Basin department, in the Exploration sector. His last drawn monthly salary was RM19,422.00.
[8] The claimant was also placed as the Project Manager under the project PETRONAS-NIOC Dezful Embayment, Abadan Plain Joint Studies Project, based in Tehran, Iran ("Project Iran") with effect from August 2017. As a result, he would be regularly stationed in Tehran, Iran, for the purposes of the Project. Amongst the team members for Project Iran was COW1 (ie the complainant).
[9] The Company contends that on 2 March 2018 they received a complaint from COW1 in relation to a series of actions allegedly committed by the claimant wherein the claimant was alleged to have committed sexual and/or workplace harassment against the complainant as follows:
a. On 16 October 2017, the claimant had on the roadside adjacent to the Aasa Hotel in Tehran, swore at COW1 with the words "Fuck you" and had shown an obscene gesture (ie middle finger) to the complainant;
b. On 24 November 2017, at approximately 7.00pm, whilst the claimant and COW1 were having a discussion on work plan and project issues at Suite 33, Aasa Hotel, Tehran, the claimant had scolded COW1 "Kau jangan mengada nak tambah drama ko... Kalau tak aku fuck ko lagi!" and shown an obscene gesture (ie middle finger) to the complainant;
c. Between the months of October 2017 to February 2018, the claimant had on numerous instances referred to COW1 as "Pishy Pia", which refers to "Pussy Cat, come here!" in the Persian language;
d. Between the months of November to December 2017 and February 2018, at Subsurface Geology Office, Level 8, Exploration Directorate, NIOC Office, Tehran, the claimant had on numerous occasions said to COW1 "Touch me Nini... touch me...";
e. On 2 February 2018 at approximately 11.00am, the claimant had tried to hug COW1 from behind after the claimant had helped her climb the sand dunes at Yazd Desert, Iran;
f. On 17 February 2018 at approximately 3.00pm, whilst at the Subsurface Geology Office, Level 8, Exploration Directorate, NIOC Office, Tehran, the claimant had said to COW1 "Amboi Nini... jalan melenggang!" when following COW1 from behind whilst COW1 was on her way to the restroom;
g. On 17 February 2018, at approximately 6.00pm, at the kitchen area of Suite 103, Tavrij Hotel and Apartment, Tehran, the claimant had rubbed his body against COW1's backside;
h. On 18 February 2018, at approximately 11.00am, at the Subsurface Geology Office, Level 8, Exploration Directorate, NIOC Office, Tehran, the claimant had uttered the following words to COW1:
(i) "Nini ada curve... that's why local (Iranian) suka";
(ii) "Nini lurah ko nampak" while giving COW1 an undefined smile;
i. On 18 February 2018, at approximately 12.00pm, the claimant had tapped COW1's left thigh whilst they w
