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2025 MarsdenLR 3017
INDUSTRIAL COURT PENANG
KANNAN ELANKIRAN – Appellant
Versus
AIR PRODUCTS MALAYSIA SDN BHD – Respondent
Award No: 237 Of 2025 [Case No: 18/4-529/23]
The dismissal of an employee for repeated misconduct involving safety violations, particularly when transporting hazardous materials, is justified under the Industrial Relations Act, emphasizing the employer's duty to ensure safety.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed for using mobile phone while driving a company vehicle carrying hazardous materials - Claimant's repeated misconduct established - Dismissal deemed justified as per company policy and safety regulations - Court reaffirmed the necessity of maintaining safety standards in hazardous environments. (Paras 1, 36, 69)
(B) Burden of Proof - Employer bears the burden to prove dismissal was with just cause - Standard of proof is on a balance of probabilities - Court must evaluate evidence presented at domestic inquiry. (Paras 25, 51)
(C) Domestic Inquiry - Court emphasized the importance of natural justice and the validity of domestic inquiries - Prior warnings and the nature of the misconduct considered in assessing dismissal. (Paras 27, 57)
(D) Proportionality of Punishment - Court has jurisdiction to determine if dismissal is proportionate to the misconduct - Severity of the misconduct due to the nature of the claimant's job as a driver for hazardous substances. (Paras 63, 66)
Facts of the case:
The Claimant, employed as a driver, was dismissed for repeatedly using his mobile phone while driving a company vehicle carrying hazardous materials, despite prior warnings. The Claimant contended that his actions were due to a personal emergency regarding his pregnant wife but failed to prove just cause for his actions.
Findings of Court:
The court found that the Claimant's dismissal was justified due to repeated violations of company policy, emphasizing the critical nature of safety in transporting hazardous materials.
Issues: The court addressed whether the Claimant committed the misconduct, if the dismissal was justified, and if the punishment was appropriate.
Ratio Decidendi: The court concluded that the Claimant's repeated misconduct warranted dismissal, and the company acted within its rights to terminate employment based on its safety policies.
Result: Claimant's case is hereby dismissed.
AWARD
Reference
[1] This is a reference made on 10 March 2023 by the Director-General of Industrial Relations Department to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ('the Act') arising out of the dismissal of Kannan A/L Elankiran (hereinafter referred to as 'the Claimant') by Air Products Malaysia Sdn Bhd (hereinafter referred to as 'the Company'). The Director-General's reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Company on 21 July 2022.
Brief Background Facts Of The Case
[2] The Claimant's pleaded case as contained in his Statement of Case dated 25 April 2023 was that he joined the Company as a Driver under a fixed term contract from 1 January 2019 until 31 December 2019. His last drawn salary as pleaded was RM4,000.00.
[3] The Claimant pleaded and averred that as a driver his duties was to drive the Liquid Bulk trailer lorries and deliver the Company's products to its customers.
[4] The Claimant averred that he was issued with a show cause letter dated 21 June 2022 by the Company for allegedly using his mobile phone while driving the Company's Liquid Bulk lorry. The Claimant pleaded that he replied to the said show cause via letter dated 23 June 2022 stating his explanation.
[5] Further, the Claimant pleaded that he was instructed to attend a domestic inquiry on 4 July 2022 and averred that he had explained at the inquiry that he had to answer his wife's phone call on 17 June 2022 because his wife was pregnant at the material time and her expected delivery was due. He also averred that she was alone at home with no one to take care of her.
[6] The Claimant pleaded that he did not deny the said allegation against him and that he had explained the actual situation regarding the condition of his wife.
[7] Thereafter, the Claimant pleaded that he was notified of his dismissal by the Company via letter dated 21 July 2022 and averred that the Company did not consider the reasons which he had stated at the inquiry against him.
[8] On his dismissal by the Company, the Claimant contends that his dismissal was actuated by 'malafide', an unfair labour practice and was without just cause or excuse and hence pleaded for reinstatement and the other usual reliefs.
[9] The Company on the other hand, in their Statement of Reply dated 23 August 2023 pleaded that the dismissal of the Claimant was with just cause and excuse in view of his misconduct wherein there was repetitive violation of the Company's safety policies.
[10] The Company averred that at the time of the dismissal, the Claimant was a Liquid Bulk Driver, and his last drawn salary was RM1,588.75 and his monthly basic salary was RM1,590.00. The Company stated that the Claimant was eligible for allowances and safety incentive subject to his compliance with the Company's safety requirements. It was pleaded that the Company is a full-service industrial gases company.
[11] Further, the Company pleaded and averred that the Claimant was appointed as a Liquid Bulk Driver on a fixed term contract basis from 1 January 2019 to 31 December 2019 based at the Company's Prai Plant and his duties and responsibilities include the following:
i) To operate the Liquid Bulk vehicle and perform delivery to the Company's customers in Malaysia;
ii) To follow the procedures in the Asian Driver's Handbook (Asian - Driver Qualifications) as defined in Distribution Manual;
iii) To comply with the Company and customers' property assigned to them, or utilized in the course of their duties and report loss or defects immediately to the Company;
iv) To comply with Health and Safety law and all pertinent laws governing the driving of commercial vehicles carrying a hazardous substance or not;
v) To take precautions to safeguard the Company's operator's license;
vi) Adhere to Company policies and procedures regarding safety, security, and environmental compliance;
vii) Prohibited from
