Dismissal for misconduct upheld as just and fair when supported by evidence from a proper domestic inquiry, with the burden of proof resting on the Claimant to show otherwise.

AWARD

Salahudin Hidayat Shariff:

Reference

[1] This is a reference dated 15 June 2021 made by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Narinder Kaur I/K Kulwan Singh ("the Claimant") by Pantai Medical Centre Sdn Bhd ("the Company") on 23 November 2020.

Brief Facts

[2] The Claimant started work at the Company on 2 May 2000 as a Clinic Assitant. Both parties have accepted this as a fact and has not been contested. The Claimant continued to work at the Company until termination on 23 November 2020 in the same post.

[3] The Company is a private hospital in the Klang Valley. The parties are all in the healthcare industry.

[4] The events leading to the dismissal began with the Company issuing a Letter to Show Cause dated 28 July 2020, which the Claimant acknowledged receipt on 3 August 2020. The Letter to Show Cause listed two allegations, which the Claimant replied too via a handwritten letter dated 11 August 2020. The Company than issued a Letter of Final Stern Warning dated 4 September 2020. The letter had referred to both the earlier mentioned letters as well as a meeting between the parties held on 24 August 2020. The Company rejected the reasons given by the Claimant and proceeded to issue Letter of Final Stern Warning. However, the Claimant refused to acknowledge receipt of the said letter, as written by the Company's witnesses.

[5] Then on 14 September 2020, the Company issued another Letter to Show Cause to the Claimant. The letter had listed two incidents one before the first letter above, whilst the other after the said letter. The Claimant accepted the letter on 15 September 2020 and duly replied via a handwritten letter dated 18 September 2020. The Company deemed the explanation as inadequate and issued another Letter of Warning dated 26 September 2020. The Claimant also refused to acknowledge of the letter.

[6] Then on 26 October 2020 the Company issued a Letter to Show Cause & Suspension From Work. The Claimant accepted it on the same day. The Claimant replied via another handwritten letter dated 30 October 2020. The Company again found the Claimant's explanation to be unsatisfactory and instead issued a new letter; namely a Notice of Domestic Inquiry dated 3 November 2020 fixing the Domestic Inquiry ("DI") for 9 November 2020. The Claimant acknowledged receipt of the notice on the same day.

[7] The Company preferred only one charge, namely the Claimant had allegedly refused to accept to be place under performance improvement plan ("PIP"). The DI was conducted, and the panel found the Caimant was guilty of the offence.

[8] The Company duly terminated the Claimant for misconduct based on the Notice of Termination of Employment letter dated 23 November 2020 ("Notice"). The dismissal was with immediate effect. The Claimant refused to acknowledge receipt of the said notice

[9] The Claimant challenged most of the claims of the Company above. According to the Claimant, those incidents were made up and the DI was merely a means to get her out. Subsequently, the Claimant filed a representation to the Minister of Human Resources claiming that she was terminated without just cause or excuse. Hence the case today.

[10] The Court has gone through the evidence as given through testimony in Court and the documents and submission that have been filed. Those documents and submissions are listed for ease of reference as follows:

(i) Statement of Case dated 24 December 2021;

(ii) Statement in Reply dated 19 January 2022;

(iii) Company's Bundle of Documents filed on 26 January 2022 marked as exhibit COB-1;

(iv) Company's Additional Bundle of Documents filed on 13 July 2022 marked as exhibit COB-2;

(v) Company's Additional Bundle of Documents marked on 12 October 2023 marked as exhibit COB-3;

(vi) Company's Witness Statement - Su Tan Hong Eng signed on 18 July 2022 marked as exhibit COWS-1;

(vii) Company's Witness Statement - Vinitha Jayawardene signed on