The court upheld the dismissal for just cause, emphasizing the employer's burden to prove misconduct and the necessity for maintaining company integrity.

AWARD

Mohd Taufik Mohd @ Mohd Yusoff:

Reference

[1] This is an order of reference dated 16 October 2023 by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Abdul Bakar Bin Samsudin (the Claimant) by Malaysia Airports Holdings Berhad (the Respondent) on 10 December 2018.

Roles And Functions Of The Court

[2] It is a trite law that the roles and the functions of this Court is to decide on two issues. Firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal (see Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd ; 1987 MarsdenLR 100 ; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 ; Milan Auto Sdn Bhd v. Wong Seh Yen; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049; K A Sanduran Nehru Ratnam v. I-Berhad; [2006] 1 MELR 114; [2006] 2 MLRA 467; [2006] 2 MLRA 778; [2007] 2 MLJ 430; [2007] 1 ILR 257; [2007] 1 CLJ 347).

[3] The burden of proof lies with the employer in proving that he has just cause and excuse for making the decision and not for the employee to prove otherwise (see Ireka Construction Berhad v. Chantiravathan A/l Subramaniam James ; [1995] 2 ILR 11 (Award No 245 of 1995) ).

[4] As regards the standard of proof to prove case in this Court is on the balance of probabilities that is the civil standard, which is flexible, so that the degree of probability required is proportionate to the nature of gravity of the issue, as decided in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor; 2002 MarsdenLR 1027 ; 2002 MarsdenLR 1640 ; ; , where His Lordship Justice Abdul Hamid Mohamad JCA held: "Thus, we can see that the preponderant view is that the Industrial Court , when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including "theft", is not required to be satisfied beyond reasonable doubt that the employee has "committed" the offence, as in a criminal prosecution."

[5] The learned representative for the Claimant submitted that based on the decision of Bata (M) Bhd. Kelang v. Ch'ng Soon Poh ; [1984] 1 ILR 227a , the duty of the Industrial Court is to make findings whether the dismissal was without cause or excuse, what are the employer's reason for the dismissal and whether in the circumstances the dismissal was fair or unfair after applying the following tests:

(i) Did the employer act reasonably in forming his view of the facts?;

(ii) Did the employer adopt a reasonable procedure?;

(iii) Did the employer act reasonably in concluding that dismissal was warranted in the circumstances.

Facts Of The Case

[6] On 30 July 1985, the Claimant was offered employment with the Department of Civil Aviation ("the Department"), at Kota Kinabalu, Sabah, as a Traffic Officer and subsequently he was confirmed in employment as a Traffic Officer.

[7] In 1992, the Department was separated into two (2) entities, one of which was Malaysia Airports Berhad (hereinafter referred to as "MAB"). Due to the separation, the Claimant was offered fresh employment as a General Assistant with MAB on 15 October 1992. Via a letter dated 25 September 1999, the Claimant was offered employment as an Admin/Operations Assistant - Grade 11 with MAB.

[8] Subsequent thereto, the Company was incorporated as a public listed entity with effect from November 1999.

[9] Prior to his dismissal, the Claimant was based at Labuan Airport.

[10] On 16 June 2017, before being dismissed, the Claimant was promoted to Admin Operations Officer - Support Services (Commercial) with last drawn basic salary of RM4,366.10, and with fixed monthly allowances:

(1) Regional incentive allowance of RM143.04;

(2) Cost of Living Allowance ("COLA") of RM140.00; and

(3) Transport allowance of RM110.00.

[11] Via a letter dated 7 August 2018 from the Malaysian Anti-Corruption Commission (hereinafter referred to as "the MACC"), the Com