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2020 MarsdenLR 3177
INDUSTRIAL COURT KUALA LUMPUR
AHMAD ZIL SYAMIL SUKHAIRI – Appellant
Versus
MALAYSIA AIRLINES BERHAD – Respondent
Award No: 1477 of 2020 [Case No: 15/4-1491/19]
Employer bears the burden to prove misconduct for dismissal on a balance of probabilities; dismissal must be justified with regard to employee adherence to policies.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Dismissal of Employee – The claimant was dismissed from service without just cause, leading to this court determination of whether the employer's reasons met the required burden of proof. (Paras 15, 16)
(B) Burden of Proof – It is established that the employer bears the burden to prove alleged misconduct warranting dismissal on a balance of probabilities. (Paras 16, 69)
Facts of the case: The claimant was employed as a First Officer, dismissed due to alleged misconduct including absence without justification and failure to notify the company about sickness leading to flight delays. (Paras 1-9)
Findings of Court: The court found that the company successfully established the claimant's misconduct in both charges against him. (Paras 68-71)
Issues: The court addressed whether the termination was conducted with just cause, focusing on adherence to internal policy and duty requirements. (Paras 18, 72)
Ratio Decidendi: The court ruled that the company's dismissal of the claimant was justified based on the balance of probabilities and the seriousness of the misconduct, which breached the requisite trust and discipline. (Paras 72)
Result: Claimant's dismissal was upheld.
AWARD
[1] This dispute arises from the claimant's dismissal from the service of the company with effect from 14 December 2018.
The Claimant's Pleaded Case
[2] The claimant commenced his employment with the company as a Second Officer Pilot on 1 September 2015 and was a confirmed employee.
[3] The claimant's last held position was First Officer and at the time of the claimant's dismissal, his last drawn basic salary was RM8,395.00 per month.
[4] The claimant states that the company vide letter dated 28 November 2018 issued him a show cause letter with two allegations of misconduct as follows:
Charge 1
"That you, as First Officer of the company on 16 November 2018 around 1630hours were absent from duty without proper authorisation or justification whereby it was reported that you have refused to accept standby called up for MI-II 79 KUL/CMB/KUL Reporting time at 2110 hrs.
The alleged act of misconduct committed by you tantamount to a breach of the company's policies which includes but not limited to the Malaysia Aviation Group - Industrial Relations Handbook"
Charge 2
"That you, as First Officer of the company on 24 November 2018 had failed to follow the standard operating procedures where you had reported sick last minute for MH752/753 KUL/HAN estimated time of departure at 1015hrs. Your action has disrupted the operations and resulted to the delay of the said flight for 20 minutes.
The alleged act of misconduct committed by you tantamount to a breach of the company's policies which includes but not limited to the Malaysia Aviation Group - Industrial Relations Handbook."
[5] The claimant stated that the company suspended his services and he was not allowed to enter the company's premises.
[6] The claimant by a letter dated 2 December 2018 submitted his written explanation denying the allegations alleged by the company.
[7] The claimant contended that vide letter dated 14 December 2018 the company terminated his services.
[8] The claimant appealed to the company on his dismissal but the company rejected his appeal.
[9] The claimant contended that the termination was without just cause or excuse and was carried out in bad faith, in breach of natural justice, unfair labour practice and done mala fide.
The Company's Pleaded Case
[10] The company averred that Captain Mohd Ezzaddin Bin Mohd Roslan who was responsible in handling pilots' welfare and disciplinary issues received a report that the claimant had refused to accept a standby call up duty on 16 November 2018 as stated in the Duty Executive, Crew Tracking Control Daily Report.
[11] Captain Mohd Ezzaddin also received an email dated 24 November 2018 from the Duty Executive Crew Tracking Control (CTC) that the claimant had failed to operate Flight MH752/753 KUL/HAN/KUL on 24 November 2018 when the claimant reported to go on medical leave on the last minute to the CTC.
[12] The company issued a Show Cause letter dated 28 November 2018 requiring the claimant to explain two allegations of misconduct against him to which the claimant provided his explanation by a letter dated 2 December 2018.
[13] After taking into consideration the claimant's explanation and the gravity of the alleged acts of misconduct committed by the claimant, the company decided to dismiss the claimant from the services of the company with effect from 14 December 2018.
[14] By a letter dated 21 December 2018, the claimant appealed against the dismissal imposed on him and the company rejected the claimant's appeal on his dismissal.
Law
[15] The function of the Industrial Court in a reference under s 20 of the Industrial Relations Act 1967 had been spelt out clearly by the Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, where His Lordship Raja Azlan Shah CJM stated:
"... where representation is 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
