The employer must provide convincing evidence of an employee's misconduct and the absence of improvement in performance before justifying a dismissal under the Industrial Relations Act, ensuring all procedural requirements are met.

[1] This case was referred by the Honourable Minister of Human Resources vide his reference dated 19 September 2007 and received by the Industrial Court on 10 December 2007.

[2] The case was mentioned before Chairman Court 5 and heard on 11 November 2008. Parties filed their submissions on 23 December 2008 (claimant), 21 January 2009 (company) and 2 March 2009 (claimant's reply). The case was awaiting award by Chairman Court 5. The Chairman was, however, elevated to the High Court of Malaysia as Judicial Commissioner and parties were duly informed. The claimant's counsel by their letter dated 9 September 2009 had given consent and had no objections that the award be handed down by another Chairman of the Industrial Court. Similarly the company's counsel vide their letter dated 15 September 2009 also agreed to the same. The case was first transferred to Court 27 on 9 November 2009 and later to this Court on 18 November 2009 to hand down an award.

Brief Facts

[3] The claimant commenced employment with the company on 3 March 1986 as a Production Operator. The claimant last drawn basic salary was RM1,070. The claimant was confirmed upon completion of the three months probation period.

[4] The claimant in her years of services with the company was given two service awards, the first for fifteen years and the second for twenty years service.

[5] The company contended that the claimant had been issued with a show cause letter dated 3 March 1989 for assaulting a co-worker as per COB p. 3 and was suspended for five days for the alleged misconduct as per p. 4 COB.

[6] The claimant was also given a warning letter dated 21 May 2006 as per p. 5 COB for being late for work. The claimant was warned that should there be a repeat of the said misconduct, she would be dealt with "seterusnya".

[7] The claimant was placed under a Performance Improvement Plan from 20 November 2006 to 31 December 2006. Upon completion of the Performance Improvement Plan, the company found that the claimant was still coming late in January and February 2007, absent on 3 January 2007 and 8 February 2007 and had used a non panel clinic on 24 February 2007.

[8] The company considered the above misconduct as serious and as an indication that the claimant had not improved and acted in a manner inconsistent with her express or implied duties. The company thus had lost confidence and trust in the claimant and decided to terminate the claimant's employment as of 28 February 2007.

[9] The claimant alleged that her dismissal was without just cause and excuse.

The Issue

[10] The issue before the Court is whether the claimant's dismissal by the company was with or without just cause or excuse.

The Law

[11] The role of the Industrial Court has been explicitly propounded by Federal Court in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen , 1995 MarsdenLR 293 , where Mohd. Azmi FCJ states as follows:

As pointed out this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Anor Appeal, 1995 MarsdenLR 1088 , the function of the Industrial Court in dismissal cases on