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2021 MarsdenLR 4255
INDUSTRIAL COURT KUALA LUMPUR
JEANA YEO SEE NAH – Appellant
Versus
VIRGOZ OILS & FATS SDN BHD – Respondent
Award No: 93 Of 2021 [Case No: 7/4-2388/19]
The absence of a domestic inquiry does not invalidate a dismissal if the employer establishes just cause for termination based on misconduct.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Employment dismissal – Claimant argued wrongful termination without due process – Court held that a dismissal can be justified with just cause or excuse by the employer – The absence of a domestic inquiry is not fatal to the employer's case provided it is fairly evaluated – Claimant breached confidentiality by disclosing sensitive information, justifying her dismissal. (Paras 10, 11, 12, 24, 36, 46)
(B) Procedural fairness – The employer's requirement to provide particulars of allegations against the employee must be balanced with just cause – Immediate dismissal justified where series of misconducts is proven. (Paras 20, 30, 45)
Facts of the case: The claimant, employed as Manager with a salary of RM 27,500, was dismissed without prior inquiry for allegedly breaching confidentiality and making derogatory remarks against her superior during a meeting where CCTV footage was presented. (Paras 4, 8, 32)
Findings of Court: Employer proved dismissal was with just cause; claimant's actions constituted serious misconduct justifying immediate termination. (Paras 46)
Issues: Whether the termination process followed was just and whether the alleged misconduct warranted dismissal. (Paras 12, 45)
Ratio Decidendi: The dismissal was justified based on the balance of probabilities; even lack of a formal domestic inquiry did not invalidate the employer's case, provided substantial merits were examined. (Paras 11, 30, 46)
Result: Claim dismissed.
AWARD
[1] The Ministerial Reference, in this case, required the court to hear and determine the claimant's dismissal by the company on 29 July 2019.
[2] The parties in this matter filed their respective written submissions and submissions in reply on 3 September 2020, 7 September 2020, 17 September 2020 and 18 September 2020.
[3] This court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:
(i) The claimant's Statement of Case received on 6 January 2020;
(ii) The company's Statement in Reply received on 17 February 2020;
(iii) The claimant's Rejoinder received on 16 March 2020;
(iv) The claimant's Bundle of Document - CLB;
(v) The company's Bundle of Documents - COB;
(vi) Claimant's Witness Statement - CLWS; and
(vii) Company's Witness Statements - COWS1 and COWS2.
Brief Facts
[4] Jeana Yeo See Nah, the claimant, commenced employment with Virgoz Oils & Fats Sdn Bhd, the company, on 4 January 2016 as Manager for Specialty Fats with a monthly salary of RM 25,000. The claimant last drawn salary before her allege dismissal was RM 27,500 per month.
[5] The company is in the business of marketing and distributing palm oil products and serves as a commission agent for its principal, Virgoz Oils Pte Ltd in Singapore. It was submitted that the company, besides marketing, was also the trading arm of Permata Hijau Group, a fully integrated palm oil corporation based in Indonesia, distributing various palm oil products globally.
[6] On 29 July 2019, the claimant was called for an urgent meeting with the Director of the company, Mr Francis Xavier (COWS1), Mr Khairul Saleh Limsa (COWS2) and Mr Ryan Chang.
[7] At the meeting, a CCTV footage was played by Mr Ryan Chang for about 10 - 15 minutes with an image and the voice of the claimant speaking on the phone. Mr Francis Xavier then handed over a termination letter and a copy of the video to the claimant and informed her that her contract of employment was terminated.
[8] The claimant claims that no show cause letter was issued to her nor a domestic inquiry held for her to explain herself of the accusations made by the company. She was asked to leave the office immediately and was informed that her July 2019 salary will be paid later.
[9] The claimant now contends that her dismissal was not in accordance with the due process as provided under the IRA and she was wrongly dismissed by the company. She prayed to be reinstated to her former position without loss of seniority, wages or benefits, monetary or otherwise.
The General Law
[10] When dealing with a reference under s 20 of the Industrial Relations Act 1967 the first thing that the Industrial court must consider is the question of whether there was, in fact, a dismissal. If this question is answered in the affirmative, it must only then go on to consider if the said dismissal was with or without just cause or excuse (see Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988] 1 MLJ 92.
[11] The meaning of "dismissal" in s 20 of the Act was not clearly defined but it simply means the termination of employment by an employer. In the case of Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong; [1998] 2 ILR 965 it was held as follows:
In a s 20 reference, a workman's complaint consists of two elements: firstly, that he has been dismissed, and secondly that such dismissal was without just cause or excuse. It is upon these two elements being established that the workman can claim his relief, to wit, an order for reinstatement, which may be granted or not at the discretion of the Industrial court. As to the first element, industrial jurisprudence as developed in the course of industrial adjudication readily recognizes that any act which has the effect of bringing the employment contract to an end is a 'dismissal' within the meaning of s 20. The terminology used and the means resorted to by an employer are of little significance; thus, contractual terminations, constructive dismissals,
