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2024 MarsdenLR 2694
INDUSTRIAL COURT SABAH
YEN CHEE FOH – Appellant
Versus
NABATI FOOD MALAYSIA SDN BHD – Respondent
Award No: 385 of 2024 [Case No: 17/4-2532/21]
The employer must prove just cause for dismissal, and the absence of a domestic inquiry does not invalidate the dismissal if the employee had the opportunity to present their case.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – Claimant dismissed for alleged misconducts including insubordination and failure to follow instructions – Claimant denied allegations and claimed unlawful termination – Court found dismissal lawful with just cause after evaluating evidence and misconduct – Claimant's failure to respond to show cause letter and lack of improvement noted. (Paras 1-90)
(B) Burden of Proof – The employer bears the burden to prove that the dismissal was with just cause or excuse, and must provide convincing evidence of misconduct. (Paras 12-19)
(C) Proportionality of Punishment – The court must consider whether the punishment of dismissal is proportionate to the misconduct committed by the employee. (Paras 49-56)
(D) Domestic Inquiry – Absence of a domestic inquiry does not invalidate the dismissal if the employee had the opportunity to present their case before the Industrial Court. (Paras 71-78)
Facts of the case: The Claimant was dismissed by the Company for alleged misconducts including insubordination and failure to follow instructions. The Claimant denied the allegations and sought reinstatement. The Company argued that the dismissal was lawful due to the Claimant's repeated misconducts and failure to improve. (Paras 1-8)
Findings of Court: The Court found that the Claimant committed misconduct as alleged in the show cause letter and that the dismissal was justified. The Claimant was given ample opportunities to improve but failed to do so. (Paras 88-90)
Issues: Whether the dismissal was with just cause or excuse, and whether the punishment was proportionate to the misconduct. (Paras 10, 49)
Ratio Decidendi: The Court held that the Company had established the misconduct on a balance of probabilities, and the dismissal was lawful and proportionate given the Claimant's repeated failures and misconducts. (Paras 88-90)
Result: Claim dismissed except for the unpaid commission for May 2020, which the Company was ordered to pay. (Paras 90-91)
AWARD
A. Reference
[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of YEN CHEE FOH (hereinafter referred to as"the Claimant") by NABATI FOOD MALAYSIA SDN BHD (hereinafter referred to as"the Company").
B. Preface
[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal on 22 December 2020 by the Company.
[3] The Claimant commenced his employment with the Company as Sales Representative effective on 1 November 2018.
[4] The Company issued a Show Cause Letter dated 4 August 2020 to the Claimant with the following allegation of misconducts:
3.1 1st Allegation: "On 15 January 2020 at 11.00am in the office premise Keningau, you quarrelling and used bad words towards your Supervisors and Branch Manager. You slander your Supervisor talk bad behind you and threatening harm to injure the person. During the conversation you have failed to control your emotion by using abusive words e. g tham ma de, chou ji bai, ham ka chan"
3.2 2nd Allegation: "On 20 April 2020 - during the RMO you intentionally refusing to follow directions from your Supervisor and arguing with him. Fail to take customer orders and service outlet."
3.3 3rd Allegation: "14 July 2020 at 9.00am in office Keningau - It is extremely important that you shall follow the direction and instruction from your Supervisor at all times provided that they are not instructing you to perform a task that is unethical, illegal or unsafe. Unfortunately you are refused to carry out the instructions and shouted at him and used abusive words towards him."
3.4 4th Allegation: "On 16 July 2020, you argued and lie to your Supervisor when he directed you to go to Kemabong area for clearance stock near expired in the outlet, unfortunately until 30 July 2020 the stocks are still there."
[5] The Claimant denied committing any misconduct but did not reply to the Show Cause Letter whereby he claims that the said letter was in English and he did not understand that he had to provide a written rebuttal to each allegation.
[6] The Company terminated the services of the Claimant vide a Letter of termination dated 22 December 2020 with immediate effect after the Company was satisfied that he had committed the alleged misconducts as per the Show Cause Letter.
[7] The Claimant contended that he was unlawfully terminated and that his dismissal by the Company was without just cause or excuse. The Claimant therefore seeks to be reinstated to his former position and/or any other alternate relief as this Court deems fit and proper to make.
[8] The Company however states that the termination of the Claimant was lawful with just cause or excuse due to serious misconducts which violated the express and implied terms and conditions of the Claimant's employment. The Company prays for the punishment of dismissal to be upheld and the Claimant's claim to be dismissed.
C. Witnesses
[9] During the Hearing, there were 3 witnesses for the Company and only 1 witness for the Claimant as follows:
CoW1: Mohd Arif Koh Kean Lin - the Sales Supervisor of the Company in Keningau Sabah. His witness statement was marked as CoWS-1.
CoW2: Jovinia Tan Son Wei - the Area Business Manager of the Company. Her witness statement was marked as CoWS-2.
CoW3: Chu King Seng - the National Sales Manager of the Company. His witness statement was marked as CoWS-3.
CLW1: Yen Chee Foh - the Claimant and his Witness Statement was marked as CLWS-1.
D. Issues For Determination
[10] In this case, it is an undisputed fact from the evidence that the Claimant's employment with the Company was terminated on 22 December 2020.
[11] Based on the case of Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another Appeal, [2001] 2 AMR 2309, it now remains to be considered whether the termination was with just cause or excuse.
E. Duty Of The Industrial Court
[12] First and foremost, it is the duty o
