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2020 MarsdenLR 1926
INDUSTRIAL COURT KUALA LUMPUR
SUGUNARANI N VEERASAMY – Appellant
Versus
IZAUDDIN FIRDAUS & MAHENDRAN – Respondent
Award No: 279 Of 2020 [Case No: 7/4-3030/18]
An employee can be dismissed for misconduct without prior warnings if sufficient cause is demonstrated, substantiated by evidence of performance issues.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Unfair Dismissal – The Claimant, employed under a Contract For Service, claimed unfair dismissal after substantial allegations against her conduct. The Court found the Company dismissed her with just cause and excuse, after proving misconduct – The termination was justified despite no formal prior warnings required for such allegations – Dismissal upheld based on breach of implied duties and trust (Paras 13, 15, 19, 44).
(B)
Employment Contract – The Court considered the Contract For Service, concluding that despite contradictions, the Claimant had accepted the terms set by the Company and was indeed a workman as defined under Section 2 of the Act (Paras 24, 27).
Facts of the case:
The Claimant was employed for about seven years before termination, which was alleged to be without just cause. The Company cited performance issues and serious misconduct leading to the dismissal.
Findings of Court:
The Court determined that dismissal was substantiated and justified based on the evidence provided and the context in which it was executed.
Issues
: Whether the dismissal was with or without just cause; whether the Company proved the allegations made against the Claimant.
Ratio Decidendi:
The Court reiterated the requirement for employers to establish just cause for dismissal, reiterating that misconduct can justify termination without prior written warnings in certain circumstances.
Result:
Claim by the Claimant dismissed.
AWARD
[1] This Court considered all the notes of proceedings in this matter, documents and the following cause papers in handing down this Award namely:
(i) The Claimant's Statement of Case received on 4 February 2019;
(ii) The Company's Statement in Reply received on 25 February 2019;
(iii) The Claimant's Rejoinder received on 8 March 2019;
(iv) The Claimant's Bundle of Documents - CLB1 and CLB2;
(v) The Company's Bundle of Documents - COB1 and COB2;
(vi) Claimant's Witness Statement - CLWS1; and
(vii) Company's Witness Statement - COWS3 (evidence of COW1 and COW2 were given orally in Court).
The Facts
[2] By letter of appointment dated 2 February 2011, the Claimant was employed by the Company as a Litigation Clerk under a Contract For Service for three (3) months with effect from 2 February 2011 until 30 April 2011.
[3] After the expiry of the first contract, subsequently, the Claimant was allegedly re-appointed and the contract was renewed by letter dated 1 May 2011, which the Claimant denies, with the monthly salary of RM2,300.00 per month. The Claimant served the Company for about seven (7) years thereafter before she was then terminated on 10 August 2018.
[4] The Company avers that in January 2017, the Managing Partner of the Company, Mr Mahendran, COW3 informed the Claimant that her contract for service will end in March 2017 and her services will no longer be needed. The Company states that the Claimant however pleaded to Mr Mahendran to continue her service, which the Claimant denied. The Company contend that they agreed to renew the contract but at a reduced salary of RM1,800.00 per month. The Company states that the Claimant had condoned to the said reduction in salary but the Claimant again denies it and contends that the Company had victimized her by unilaterally deducting her salary without any notice.
[5] The Claimant avers that she had served the Company for 7% years with an unblemished record and had provided excellent service without any adverse report and contends that her dismissal on 10 August 2018 was unfair and without just cause or excuse. The Claimant states that she was appointed for the post of Litigation Clerk from end of January 2011 with a verbal agreement with Mr Mahendran that her salary would be RM3,300.00 per month. Since the Company was unable to pay that amount, the Claimant accepted the offer of RM2,300.00 but was promised that the Company would revised her salary later.
[6] On the other hand, the Company vehemently denied the above stated averment and states that the Claimant had actually failed and refused to improve her performance after being advised of her lackadaisical attitude and behavior which had deteriorated, as stated by the Company, to an unbearable level.
[7] By letter dated 25 April 2016 the Company issued the Claimant a Show Cause Letter and requested an explanation to the issues raised therein. The letter is now reproduced below for ease of reference.
[8] The Claimant choose not to respond to the letter which she accepted it but refused to acknowledge the same. The Company alleged that the Claimant thereafter met Mr Mahendran in his room and offered an apology and promised to improve her performance, commitment, attitude and remedy all her short comings. In response, Mr Mahendran informed her that it would be the last warning failing which she will be dismissed from her services. The Claimant on the contrary states in her Statement of Case that she was not even aware of the letter and denies such meeting and put the Company to strict proof.
[9] On the day of dismissal, 10 August 2018, the Claimant avers, without prior notice, the Company called her and informed her orally that her services were terminated with immediate effect and refuses to give her any letter of termination. Only after the Claimant wrote a letter on 13 August 2018 requesting for her status in the Company, then they issued the termination letter backdated it to 10 August 2018. The letter is reproduced below
