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2023 MarsdenLR 502
INDUSTRIAL COURT SARAWAK
FAISAL MACHMUD – Appellant
Versus
CMS I SYSTEMS SDN BHD – Respondent
2265 of 2023 [Case No: 8/4-894/22]
The employer must prove just cause for dismissal, particularly when misconduct involves misrepresentation affecting trust in sensitive roles.
Headnote:(A) Industrial Relations Act 1967 - Section 20 - Dismissal of employee - Claimant dismissed for alleged misrepresentation of family relationship with Group CFO - Court emphasizes the employer’s burden to prove just cause for dismissal. (Paras 14, 17, 19, 39)
(B) Misrepresentation - Claimant's misrepresentation regarding family ties deemed misconduct - Dismissal upheld due to breach of trust and integrity required in the claimant's position as Infrastructure Manager. (Paras 28, 34, 41)
Facts of the case:
The Claimant, employed since 2004, was dismissed on 24 September 2021 after being suspended due to allegations of familial ties with a suspended Group CFO. (Paras 3, 12)
Findings of Court:
The dismissal was found justified due to the Claimant's misconduct and breach of trust, given his access to sensitive data. (Paras 38, 42)
Issues: Whether the dismissal was with just cause or excuse, considering the Claimant's long-standing misrepresentation and its implications. (Paras 30, 41)
Ratio Decidendi: The Court ruled that the Company acted reasonably in dismissing the Claimant to prevent potential breaches of confidentiality, establishing the necessity of trust in sensitive positions. (Paras 37, 39)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. background of dismissal case. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 2. role of industrial court in dismissal cases. (Para 14 , 15 , 16) |
| 3. burden of proof on the employer. (Para 17 , 18) |
| 4. evidence of claimant's misconduct. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 5. assessment of just cause for dismissal. (Para 29 , 30 , 31 , 32 , 33 , 34) |
| 6. consideration of proportionality and fairness. (Para 35 , 36 , 37 , 38 , 39 , 40 , 41) |
| 7. conclusion on dismissal's justification. (Para 42) |
[1] This is an order of reference dated 18 April 2022 by the Director General of Industrial Relations Department pursuant to subsection 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Faisal Machmud (the Claimant) by CMS I-Systems Sdn Bhd (the Respondent) on 24 September 2021.
Brief Facts
[2] The Company is a subsidiary of Cahya Mata Sarawak Berhad ("CMSB") and a member of the Cahya Mata Sarawak Group of Companies ("CMS Group"). The Company provides information technology (IT) services and infrastructure to the entire CMS Group.
[3] The Claimant commenced his employment with the Company on 1 December 2004 as a Field Support Engineer, in 2007 as a Field Support Engineer, in 2008 as an IT Services Manager, and in 2020 as an Infrastructure Manager. At the time of his dismissal from the Company on 24 September 2021, the Claimant was an Infrastructure Manager with a last-drawn monthly salary of RM17,666.00.
[4] During the dismissal, the Claimant was the highest-ranking employee, ie, Acting Head of the Company.
[5] In 2021, CMSB received allegations of possible financial mismanagement and breach of fiduciary duty by its Group Chief Financial Officer, Syed Hizam Alsagoff, and suspended its Group Chief Financial Officer (GCFO) for investigation.
[6] On 5 May 2021, the Company also suspended the Claimant on full pay for thirty (30) days due to the allegation that the Claimant had a close family relationship with the Group Chief Financial Officer.
[7] By letter dated 28 May 2021, the Company had mandated a Board of Inquiry to inquire into the allegation that the Claimant had a close family relationship with the GCFO. The context of the inquiry was to describe the Claimant's family relationships with Syed Hizam Alsagoff, to explain why the Claimant was using the name "Faisal Alsagoff' on his LinkedIn account, and to provide a copy of his birth certificate and other official identification documents such as his passport and identity card.
[8] By letter dated 31 May 2021, the Claimant responded to the Company to the questions asked of him.
[9] The Claimant's suspension was extended four (4) times from 3 June 2021 until 26 September 2021 due to the pending investigations on the Claimant's alleged close family relationships with Syed Hizam Alsagoff.
[10] On 5 July 2021, further communications ensued between the Board of Inquiry and the Claimant in respect of his relationship with one Sharifah Mahani binti Syed Alwi Alsagoff, whom the Claimant particularised as his biological mother in two (2) forms, namely, the Staff Particulars Form and the Beneficiary Nomination Form.
[11] The Claimant replied via a letter dated 12 July 2021 stating that Sharifah Mahani Binti Syed Alwi Alsagoff was not his biological mother, but the Claimant considered her his mother.
[12] By letter dated 24 September 2021, the Company found that the Claimant had breached cl 8.2, Sub-section 2.4 of the Group HR Policies and Procedures Manual when he had misrepresented his relationship with Sharifah Mahani binti Syed Alwi Alsagoff and was dismissed from the Company.
[13] Dissatisfied with the Company's decision, the Claimant commenced this action.
The Law
Role And Function Of The Industrial Court
[14] The role of the Industrial Court under s 20 of the Industrial Relations Act 1967 is succinctly explained in the case Milan Auto Sdn Bhd v. Wong Seh Yen ; [1995] 4 CLJ 449; [1996] 1 AMR 049. His Lordship Justice Mohd Azmi bin Kama
