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2023 MarsdenLR 32
INDUSTRIAL COURT PERAK
ROSHIDAH DAUD – Appellant
Versus
USG BORAL SDN BHD – Respondent
Award No: 1597 Of 2023 [Case No: 10/4-2000/20]
The dismissal of an employee for receiving unauthorized commissions constitutes serious misconduct justifying termination under the Industrial Relations Act 1967, as it undermines the trust essential in employer-employee relationships.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal for misconduct - Claimant dismissed for receiving unauthorized commission from transporters, breaching Company’s Anti-Bribery and Corruption Policy and HR Policy - The Company’s investigation established misconduct based on WhatsApp messages and bank transactions. (Paras 3, 13, 20, 61, 139)
(B) Misconduct - Definition and gravity - Misconduct must be serious enough to undermine trust between employer and employee; dismissal is justified if proven. (Paras 39, 113)
(C) Burden of proof - Employer must prove misconduct on balance of probabilities; the standard is not beyond reasonable doubt. (Paras 42, 66)
(D) Fairness of process - The Court must ensure natural justice was upheld during the inquiry; the claimant’s rights must be maintained. (Paras 98, 102) (E) Dismissal - The Court found that the Claimant’s actions constituted serious misconduct justifying dismissal; the decision was upheld as reasonable and justified. (Paras 140, 144)
| Table of Content |
|---|
| 1. details of the claimant's employment and allegations. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 2. arguments from both parties regarding misconduct. (Para 16 , 17 , 22 , 23 , 24 , 25 , 26 , 27 , 30 , 31) |
| 3. court's observations on the domestic inquiry process. (Para 18 , 19 , 20 , 21) |
| 4. explanation of the industrial court's role and standards. (Para 32 , 35 , 36 , 39 , 42 , 43 , 44) |
| 5. misconduct definition and its implications. (Para 49 , 50 , 52 , 53 , 54 , 56) |
| 6. evidence and contradictions in the claimant's testimony. (Para 58 , 66 , 68 , 69 , 93) |
| 7. court's evaluation of the domestic inquiry findings. (Para 94 , 95 , 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 , 104) |
| 8. conclusion on the dismissal's justification. (Para 139 , 140 , 142) |
Ministerial Reference
[1] This is a reference by the Honourable Minister of Human Resources Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 dated 8 September 2020 which was received by the Industrial Court of Malaysia on 15 September 2020 arising out of the alleged dismissal of Roshidah Binti Daud (hereinafter referred to as "the Claimant") by USG Boral Sdn Bhd (hereinafter referred to as "the Company") on 24 October 2018
Factual Background:
[2] The Claimant commenced employment with the Company (at present known as Knauf Sdn Bhd) on 14 March 1992 as a Personnel Clerk and was subsequently confirmed vide letter dated 10 September 1992 and was then promoted to the designation of Logistic Assistant (job grade NE2) on 1 March 2004, and promoted again on 1 January 2014 in the same position but higher job grade NE1. As a Logistic Assistant with the Company, one of the main tasks of the Claimant is to arrange the transporter to transport the building materials to the Company's customers.
[3] In early August 2018, the Company received information that the Claimant had received unauthorized commission from the Company's transporters and the Company had investigated the matter further and found out that the some of the transporters with provided their WhatsApp messages and bank-in slip to prove that they had indeed paid commission to the Claimant.
[4] On 20 September 2018 the Company's representatives had a meeting with the Claimant informing her about the information that she had purportedly received the commission from the Company's transporters. Following this meeting on 20 September 2018, the Claimant was suspended from work with half-pay salary for 14 days from 20 September 2018 to 3 October 2018 and pending further investigation by the Company, the suspension period was extended from 4 October 2018 to 10 October 2018 with full pay salary via a letter dated 3 October 2018.
[5] Apart of the above, at the same time, the Claimant lodged a complaint to her Head of Department about one of the Company's transporter by the name of Tan Siak Choua of his misbehaviour and not following the delivery order on loading material to a particular place/site which the lorry did not reach the place/site on 4 September 2018. In the incident, the Claimant decided to hold using Tan Siak Choua's transporter due to cancellation by buyer as a result of the behaviour of Tan Siak Choua's transporter for late delivery and not following order.
[6] However, instead of taking action against the transporter (Tan Siak Choua), the Company had issued suspension and show cause letter against the Claimant based on the complaint made by Tan Siak Choua after the above stated incident alleging that the Claimant had accepted and taken commission from Tan Siak Choua upon which the Company considered it as an offence of bribery. The Claimant denied such allegations against her by the Company.
[7] On 5 October 2018, the Plant Manager; Teoh Chee Han and Noor Hasmah Abdul Hamid from the Human Resource Department of the Company met up with the Claimant at Old Town Parit Buntar, Perak advising the Claimant that an advice obtained from the Labour Department and Industrial Relati
