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2022 MarsdenLR 2564
INDUSTRIAL COURT PENANG
ROSALIND TAN KHENG SUAN – Appellant
Versus
PENANG MEDICAL COLLEGE SDN BHD – Respondent
Award No: 2598 Of 2022 [Case No: 9/4-802/20]
Dismissal justified due to misconduct proven on balance of probabilities, with emphasis on the employer's burden to establish just cause.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Complaint regarding termination – Claimant dismissed without domestic inquiry – The Court found dismissal justified as grounds were proven based on the balance of probabilities and misconduct established – The role of employers to prove just cause is emphasized – Claim granted substantial equity and consideration of evidence revealed serious nature of misconduct. (Paras 13, 24, 40, 54, 56)
(B) Burden of Proof – The burden rests on the employer to demonstrate that the dismissal was for just cause, established through credible evidence and proper inquiry. (Paras 14, 15)
Facts of the case: The Claimant was the Financial Controller at a medical college, dismissed on 4 December 2019, for misconduct involving approval processes, potentially corrupt practices, and the production of falsified documents without a proper inquiry. These actions were deemed serious breaches of trust and responsibility.
Findings of Court: The Claimant's actions constituted grave misconduct meriting dismissal, confirmed by evidence from the employer's investigation and established testimonies.
Issues: The principal issues were whether the dismissed employee committed the alleged misconduct and if the actions justified her termination.
Ratio Decidendi: The Court determined that consistent evidence presented showed the Claimant's participation in the alleged misconduct and upheld the dismissal as appropriate given the nature of her position and the breaches committed.
Result: The Claimant's case was dismissed.
AWARD
[1] The reference from The Honourable Minister of Human Resources, Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in this case requires this Court to hear and determine the complaint made by Rosalind Tan Kheng Suan (hereinafter referred to as "the Claimant") with regard to her dismissal by Penang Medical College Sdn Bhd (hereinafter referred to as "the Company") effective 4 December 2019.
[2] This Court has considered the following cause papers and documents in handing down this Award, namely:
(a) the Claimant's Statement of Case dated 18 August 2020;
(b) the Company's Amended Statement in Reply dated 11 March 2021;
(c) the Claimant's Amended Rejoinder dated 26 March 2021;
(d) the Company's witness statement (Premnath a/l SK Nagalingam) marked as "COWS-1";
(e) the Company's witness statement (Salmah binti Aspari) marked as "COWS-2";
(f) the Company's witness statement (Stephen William Doughty) marked as "COWS-3";
(g) the Company's witness statement (David L Whitford) marked as "COWS-4";
(h) the Claimant's witness statement (Them Yong Kok) marked as "CLWS- 1";
(i) the Claimant's witness statement (Rosalind Tan Kheng Suan) marked as "CLWS-2";
(j) the Company's bundle of documents (Volume 1) marked as
(k) the Company's bundle of documents (Volume 2) marked as
(l) the Company's bundle of documents (Volume 3) marked as
(m) the Company's bundle of documents (Volume 4) marked as?
(n) the Company's bundle of documents (Volume 5) marked as "COB-5";
(o) the Company's bundle of documents (Volume 6) marked as "COB-6";
(p) the Company's bundle of documents (Volume 7) marked as "COB-7";
(q) the Company's bundle of documents (Volume 8) marked as "COB-8";
(r) the Company's bundle of documents (Volume 9) marked as "COB-9";
(s) the Company's documents (Comparison Between Payment Received by Rosalind and Total Staff Claims) marked as "COB-10";
(t) the Company's documents (The Claimant's Claim) marked as "COB- 11";
(u) the Claimant's bundle of documents marked as "CLB-1"; and
(v) the Claimant's supplemental bundle of documents marked as "CLB-2";
Brief Facts Of The Case
[3] The Company is a company incorporated in Malaysia, having its business address at No 4, Jalan Sepoy Lines, 10450 Georgetown, Penang and it operates the RCSI + UCD Malaysia Campus (formerly known as the Penang Medical College).
[4] The Claimant commenced her employment with the Company on 15 December 2009 as an Accountant vide letter dated 9 December 2009 (hereinafter referred to as "the Letter of Appointment"). By way of a letter dated 26 September 2014 (hereinafter referred to as "the Letter of Promotion"), the Claimant was promoted to the position of a Financial Controller on 1 October 2014.
[5] Pursuant to a letter dated 1 October 2019 (hereinafter referred to as "the First Letter of Show Cause"), the Company laid down four charges of misconduct against the Claimant and suspended her with immediate effect. The Claimant then responded via a letter dated 7 October 2019 (hereinafter referred to as "the Reply to the First Letter of Show Cause").
[6] Subsequently, the Company issued another letter dated 11 November 2019 with an additional charge of misconduct (hereinafter referred to as "the Second Letter of Show Cause") and the Claimant responded via a letter dated 18 November 2019 (hereinafter referred to as "the Reply to the Second Letter of Show Cause").
[7] By way of a letter dated 4 December 2019 (hereinafter referred to as "the Letter of Dismissal"), the Company dismissed the Claimant with immediate effect. No domestic inquiry was held prior to the Claimant's dismissal.
[8] At the time of her dismissal, the Claimant was the Financial Controller of the Company and her last drawn salary was RM12,500.00 per month.
The Claimant's Case
[9] The Claimant contends that throughout her 10 years of employment with the Company and until the time of her dismissal, she was a faithful, hardworking and dedicated employee which was evid
