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2020 MarsdenLR 1383
INDUSTRIAL COURT KUALA LUMPUR
TEE SOON KIAT – Appellant
Versus
AIA BHD – Respondent
Award No: 450 of 2020 [Case No: 12/4-2930/18]
Dismissal for sexual harassment upheld due to proven misconduct on balance of probabilities; employer must establish reasonable grounds for termination while adhering to principles of natural justice.
Headnote:(A) Employment Act 1967 – Section 20 – Dismissal – Claimant dismissed for alleged sexual harassment against subordinate – Court's role to determine if dismissal was with just cause – Company must prove misconduct on balance of probabilities. (Paras 6, 7, 146)
(B) Misconduct – Standard for dismissal in sexual harassment cases not criminal but based on the balance of probabilities – Importance of natural justice and fair investigation in workplace misconduct cases. (Paras 20, 146)
(C) Burden of Proof – While proof lies on the employer, the inquiry is premised on equity and good conscience, shifting the context from a criminal to a civil standard. (Paras 8, 138)
Facts of the case: Claimant was dismissed from his position for alleged sexual harassment against a junior employee; allegations included unwanted touching and failure to report the incident appropriately, following a domestic inquiry where he was found guilty of multiple charges. (Paras 1, 4, 5)
Findings of Court: Court affirmed the findings of the domestic inquiry panel supporting the allegation against the claimant, validating the procedures followed and confirming that the charges were substantiated on the balance of probabilities. (Paras 146, 152)
Issues: Whether the claimant's dismissal was justifiable under the Employment Act, and if the evidence established the misconduct as alleged. (Paras 6, 7)
Ratio Decidendi: The Court found that the employer acted reasonably in terminating the claimant based on established misconduct as it undermined trust and the integrity of the employment relationship. (Paras 7, 146)
Result: Claimant's dismissal upheld. (Paras 156)
[1] The Ministerial reference in this case required the Court to hear and determine the claimant's complaint of dismissal by the company on 14 June 2018 and was received by the Industrial Court on 24 October 2018.
Factual Matrix
[2] The company is part an insurance company which is a part of the AIA Group. The claimant joined the company as a Telemarketing Manager on 28 February 2003. On 4 March 2013, the claimant was appointed as Assistant Vice-President, Telemarketing, Outbound Contract Centre ("OCC"), Direct Marketing Partnership Distribution. This was after ING Malaysia's operations was sold to the AIA Group. The claimant's functional responsibility was for both AIA Malaysia and ING Malaysia then. He reported to the Head of the OCC, Ms Lim Cheh Ling. On 1 January 2014, the claimant's position was titled Associate Director, Direct Marketing OCC and then on 1 March 2016, the claimant was re-designated to Senior Associate Director of the OCC. His last drawn salary was RM30,340.00. Whilst in the company's service, the claimant was subjected to its Code of Conduct.
[3] On 12 April 2018, a complaint was lodged by one Ms S ("the Complainant") who was one of the company's Telemarketing Executive, against the claimant alleging that the claimant had sexually harassed her when they were inspecting the toilet located within the concourse area of Wisma AIA on 5 April 2018. Pursuant thereto, the claimant was suspended from work commencing 17 April 2018 and a show cause letter was issued against him on 25 April 2018 requesting for an explanation on the Complainant's allegation. There were 3 allegations stated in the show cause letter on sexual harassment, intimidation of Ms S and failure to escalate the incident to the claimant's superior or the Human Resources Department. The claimant duly responded vide letter dated 30 April 2018 denying the allegations against him. The claimant's suspension was extended on 15 May 2018 and he later wrote to the company complaining about the length of time taken to investigate the matter. Additionally, both the claimant and the Complainant had lodged police reports on the alleged incident.
[4] The company then issued a Notice of Domestic Inquiry (DI) dated 28 May 2018 containing 5 allegations of misconduct against the claimant, 3 of the allegations were similar in nature to the earlier charges in the show cause letter. The DI was held on 4 and 5 June 2018 whereby the claimant attended and denied all the allegations against him. The DI panel found the claimant guilty of four out of the five charges he faced. It recommended that the fifth charge be dropped due to certain reasons. The Disciplinary Committee deliberated on the DI panel's findings and recommended for his dismissal in view of the seriousness of the alleged misconduct. The Management of the company agreed with the recommendations and proceeded to dismiss the claimant with immediate effect on 14 June 2018 vide letter dated the same.
[5] The company averred that the claimant had breached the terms and conditions of his employment, inter alia, by sexually harassing the Complainant, failing to escalate the matter to his superior until a week after the incident and conducting himself in a manner that was improper and inappropriate of an Associate Director and/or abused the position of trust he held. Further, the company claimed that it had acted in accordance with the principles of natural justice in finding the claimant guilty of our out of the five charges. The company could no longer repose the necessary trust and confidence in the claimant as its employee who was holding a senior role.
Fact Of Dismissal And The Law
[6] The claimant prays that this Court holds his dismissal as being without any just cause or excuse and/or an unfair labour practice. He seeks to be reinstated to his former position. He has made his representation under s 20 of the 1967 Act. Where such representations have been made and are referred to the Ind
