The dismissal of an employee must be supported by proven misconduct on a balance of probabilities, and the employer has the burden to establish just cause for termination.

Reference

[1] This is a reference made by the Minister under s 20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of AHMAD NAZMI BIN AB TALIB (hereinafter referred to as "the Claimant") by PRASARANA MALAYSIA BERHAD (hereinafter referred to as "the Company") on 19 April 2019

Introduction Of Parties

The Company

[2] The Company drives the transformation of Malaysia's public transportation systems and services. The Company owns and operates the country's urban rail services that include three LRT networks and the KL Monorail, in addition to operating the MRT line. The Company also owns and operates the stage bus services in Kuala Lumpur, Selangor, Penang and Pahang. It also provides management and engineering consultancy services locally and abroad, undertakes commercial and transit oriented development projects within its assets as well as key public transport infrastructure projects in the country.

The Claimant

[3] The Claimant's employment with the Company began on or about 30 November 2018; when the claimant was hired as the company's Chief Digital Officer, (Grade I) ("CDO") for a period of thirty-six (36) months from 30 November 2018 to 29 November 2021 ("the contract period"). 4, The Claimant was tasked to head the Digitalization and Technology division of the Company; and reported to the then President and Chief Executive Officer of the Company. The Claimant joined the Company; after being head-hunted by the Company upon the recommendations of the CEO.

Factual Matrix

Events Which Led To The Termination Of The Claimant's Services As The CDO Of The Company

The Show Cause Letter

[4] By a Show Cause Letter dated 19 March 2019, the Claimant was required to provide a written explanation on the following allegations:

"1) (a) That you, Dato' Ahmad Nazmi Ab Talib as the Chief Digital Officer of Prasarana Malaysia Berhad have been adjudicated a bankrupt in the High Court of Malaya at Shah Alami in the State of Selangor (Ref No: BA-29NCC-7578-08/2017) on 5 July 2018 and under cl 15 (Summary 11 Dismissal) of your Contract of Employment dated 3 December 2018, "The Company may terminate the employment of the Employee with immediate effect without notice, salary or other forms of compensation if; (15.4) the Employee becomes bankrupt or makes any arrangement or composition with his creditors generally";

(b) That you, Dato' Ahmad Nazmi Ab Talib as the Chief Digital Officer of Prasarana Malaysia Berhad have been alleged to commit a misconduct as stipulated in the Human Capital Policy under cl 8.2.4 "A misconduct would also be construed even though it is committed outside the premises of Prasarana Group and after working hours, under the following circumstances; 8.2.4 (e) The act resulted in serious pecuniary embarrassment eg being declared a bankrupt.

2) That you, Dato' Ahmad Nazmi Ab Talib as the Chief Digital Officer of Prasarana Malaysia Berhad have been alleged to abuse the benefit provided to you under cl 7.2 (Driver) of your Contract of Employment dated 3 December 2018, by instructing the drivers named below