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2025 MarsdenLR 518
INDUSTRIAL COURT KUALA LUMPUR
MOHAMED REZAL MOHAMED SUHAIMI – Appellant
Versus
KELLOGG ASIA PRODUCT SDN BHD – Respondent
Award No: 793 of 2025 [Case No: 22/4-1347/23]
The employer must prove misconduct on a balance of probabilities; dismissal for sexual harassment was justified given the established inappropriate behavior.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal for gross misconduct - Claimant terminated for sexual harassment and inappropriate workplace behavior - Company had a zero-tolerance policy for harassment - Court found misconduct proven on balance of probabilities - Dismissal upheld as just cause. (Paras 1, 17, 44, 46)
(B) Burden of Proof - In an unfair dismissal claim, the employer bears the burden to prove misconduct on a balance of probabilities. (Paras 20, 21)
(C) Sexual Harassment - Definition includes unsolicited conduct creating a hostile work environment; even a single incident may suffice for a claim. (Paras 26, 27)
Facts of the case:
The Claimant, employed as a Team Leader, was dismissed for sending inappropriate messages to a subordinate, which constituted sexual harassment and inappropriate workplace behavior. The dismissal followed a domestic inquiry that found him guilty of one charge but not the other. (Paras 7, 10, 15)
Findings of Court:
The Court determined that the Company had proven the Claimant's misconduct and that the dismissal was justified. (Paras 42, 46)
Issues: The Court addressed whether the Claimant was guilty of the alleged misconduct and whether that misconduct constituted just cause for dismissal. (Paras 23)
Ratio Decidendi: The Court ruled that the Company acted reasonably in dismissing the Claimant based on the established misconduct, emphasizing the importance of maintaining a respectful workplace. (Paras 44)
Result: Claimant's case dismissed.
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Mohamed Rezal Bin Mohamed Suhaimi (hereinafter referred to as "the Claimant') by Kellogg Asia Product Sdn Bhd (hereinafter referred to as "the Company") on 27 December 2022.
[2] The reference by the Director General of Industrial Relations ("DGIR') in this case required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 27 December 2022.
I. Procedural History
[3] The Court received the letter pertaining to the DGIR's reference under s 20(3) of the Industrial Relations Act 1967 on 21 August 2023.
[4] The matter was fixed for mention on 21 September 2023, 9 November 2023, 19 December 2023, 5 January 2024, 10 January 2024, 24 January 2024, 7 February 2024, 20 February 2024, 27 February 2024, 23 April 2024, 5 November 2024 and 22 November 2024.
[5] The trial proceeded on 7 November 2024, 8 November 2024 and 10 December 2024.
[6] The identity of the Complainant will be kept confidential in this Award and she will be referred to as "COW-3", she being the Company's third witness. COW-3 had initially refused to attend Court as a witness at the proceedings herein after attempts made by the Company's solicitors to do so. However, she finally relented and agreed to testify before this Court. By this time, the Company had closed its case and the proceedings were at the stage of the Claimant's case. Learned Counsel for the Company had on 22 November 2024 orally applied to re-open the Company's case for the sole purpose of producing COW-3 as a witness before this Court. The Representative for the Claimant had objected to the oral application made by the Company's Counsel on the sole ground that the Company had already closed its case. The Court however had, in the interests of justice and having the full facts before it, allowed the oral application made by the Company's Counsel to produce COW-3 as a witness and her testimony was recorded on 10 December 2024.
II. Factual Background
[7] The Claimant commenced employment with the Company on 11 August 2014 as an Operations Technician. His last role was as an L3-Team Leader with his last drawn salary being RM4,170.52 and a Team Leader allowance of RM250.00 per month.
[8] The Claimant's employment was terminated on grounds of gross misconduct of sexual harassment and inappropriate workplace behaviour towards his former subordinate, ie COW-3. COW-3 had made a verbal complaint to the Human Resource personnel, ie Pn. Maizatul Azila Binti Mohd Din (COW-1; Assistant Manager, Administrative Support & Engagement, Human Resources) followed by a signed written statement to the HR on the same day. The complaint by COW-3 against the Claimant reads, inter alia, as follows (at pp 67-68 of COB-1):
"...Pada tahun ke-2 (2021), beliau telah mengajaksaya keluardan saya menolak beliau kerana saya tidak selesa untuk keluar dengan beliau pada hari bekerja malam. Setelah beberapa kali telah menolak dan memberi alasan, beliau telah menunjukkan sifat pelik iaitu marah dan menyoalkan alasan yang saya berikan kerana saya sering menolak pelawaan beliau. Disebabkan saya merasa takut dan tidak berani untuk melawan beliau saya akan menerangkan alasan kenapa saya menolak untuk keluar. Ya, after that, beliau okay dan baik2 sahaja. Tetapi saya fikir beliau tidak akan mengajak saya lagi selepas itu. Beliau tetap mencuba benda sama sehingga saya merasakan tidak selesa bekerja dengan beliau. Saya tidak merasa selesa diwaktu bekerja beliau kerap chatting (WhatsApp) kekadang mengeluarkan ayat tidak menyenangkan dan emoji yang tidak sepatutnya bagi saya sehingga saya merasa tidak selesa bekerja di bawah beliau.
Pada 31 Ogos 2022, beliau telah menghantar chat yang membuat saya tidak selesa iaitu "geram je rasa - Apa kan daya ley tengok je". Chat tu telah membuat saya tidak selesa akan beliau. Selepas dari itu, pada 16 September dan 17 September, beliau telah menghantar mesej emoji "emoji
