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2021 MarsdenLR 2917
INDUSTRIAL COURT KUALA LUMPUR
SEE YEAP SENG – Appellant
Versus
BERJAYA SOMPO INSURANCE BERHAD – Respondent
Award No: 1327 of 2021 [Case No: 21/4-326/20]
The court affirmed that terminations based on employee misconduct must follow established standards of proof and just cause, emphasizing the employer's responsibility to provide compelling evidence for dismissal.
Headnote:(A) Employment Law – Termination of Employment – Conflict of Interest – The claimant, a Branch Manager, was terminated for conducting personal business during working hours, conflicting with company policy – The court found sufficient evidence of misconduct based on investigation and established rules – Termination found to be justifiable. (Paras 1-86)
(B) Burden of Proof – In termination cases, the burden lies with the employer to establish misconduct – The standard of proof is on a balance of probabilities, not beyond reasonable doubt. (Paras 40-42)
Facts of the case: The claimant was terminated for allegedly conducting business for Mentari Automobil during his employment with the company, violating his employment contract and company policies.
Findings of Court: The court upheld the company's decision to terminate, validating the claims of misconduct supported by investigation results.
Issues: The primary question was whether the dismissal was justified based on the evidence of misconduct.
Ratio Decidendi: The court emphasized that evidence collected through investigations and the opportunity for the claimant to defend himself were paramount in affirming the dismissal.
Result: The claimant's case was dismissed; the termination was upheld.
AWARD
Factual Matrix
[1] The company is a general insurance service provider having branches all over the country including one in Kota Bahru, Kelantan at which the claimant was employed as a Branch Manager with a last drawn monthly salary of RM12,659.35 inclusive of fixed allowance (CLWS-1, QA4) (CLB- 1, Pages 1-5).
[2] The claimant was a permanent and confirmed employee and had been employed with the company since 2002. At all material times the claimant was also holding 5% shares in another company by the name of Mentari Automobil dealing with pre-owned vehicles as well as car insurance.
[3] Throughout his service with the company, the claimant rose from the position of Marketing Executive and held various positions such as Assistant Manager, Branch Manager and Senior Manager of Business Development and Marketing. Nevertheless, the claimant's main responsibility, since 2004 was as the company's Branch Manager in Kota Bahru.
Events Leading To The Claimant's Termination
[4] On 16 August 2018, the claimant was called for a meeting with the company's Chief Executive Officer, by the name of Mr Tan Sek Kee and Deputy Chief Executive Officer by the name of Mr Futoshi Hanahara, and in the presence of the company's Head of Human Resources by the name of Mr Wong Wai Kit.
[5] The meeting was to inquire and to give the claimant the opportunity to explain about a situation of conflict of interest involving his position in the company (as the Senior Manager Marketing, Kota Baru Branch) and his position and/or involvement in Mentari Automobil.
[6] Pursuant to the meeting, the company issued a letter dated 30 August 2018 to require the claimant to provide his further explanation in writing.
[7] On 2 September 2018, the claimant responded to the company's letter dated 30 August 2018, by email stating that Mentari Automobil is managed by a shop manager known as Chan Siek Hong and thereafter replaced by Ms Liam.
[8] Subsequent to the response from the claimant, on 3 January 2019, the claimant was given a letter entitled "Notice Of Inquiry" from the company where the following charge was levelled against him:
Charge
It is alleged that you, as a Senior Manager, Marketing, for Kota Bahru branch, had created a conflict of interest situation between yourself and the company (BSIB) by carrying out business activities for another business entity ie Mentari Automobil situated at Lot 355-357, Jalan Pasir Puteh, 15200 Kota Bahru during Berjaya Sompo Insurance Berhad (BSIB) office hours between 10 December 2018 to 12 December 2018 when you knew or ought to have known that such activities are clearly prohibited under the BSIB Human Resources Policy and your signed Contract of Employment thus constituting acts of misconduct.
[9] The claimant was further informed that he was required to attend a Domestic Inquiry on the above charge and that, in the meantime his services in the company would be suspended.
[10] The company held a Domestic Inquiry against the claimant on 24 January 2019.
The Private Investigators Report
[11] In order to adduce material evidence before the DI, the company had appointed private investigators to track the movements of the claimant from 10 December 2018 to 12 December 2018. The private investigators had provided a report on their surveillance of the claimant during the said period. (COB-1, p 3036)
[12] The report formed the basis of the charge levelled against the claimant and was relied upon by the company during the domestic inquiry to establish that the claimant had gone to Mentari Automobil during office hours to conduct personal business.
[13] The summary of the private investigator's report on the movements of the claimant on 11 December 2018 is as follows:
The Claimant's Whereabout/Movements on 11 December 2018
[14] The claimant's Whereabout/Movements on 12 December 2018.
[15] By a letter dated 26 February 2019, the claimant was informed of the decision of the DI that the claimant was found guilty as charged a
