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2011 MarsdenLR 5085
HAPIPAH MONEL
HURRIYATI MOHD HUSSEIN – Appellant
Versus
UNITED OVERSEA BANK (MALAYSIA) BHD – Respondent
The burden of proof lies with the employer to establish just cause for dismissal, including demonstrating misconduct and adherence to natural justice principles during inquiries.
Headnote:(A) Employment Law - Misappropriation of Funds - Employment Act 1955 - Dismissal with just cause - Burden of proof lies with the employer to prove that the termination was with just cause. The Bank dismissed the Claimant for misappropriating cash RM320.00 based on evidence from a Domestic Inquiry (DI) which found her guilty. The Claimant contended the inquiry lacked clarity and violated principles of natural justice. The court found that sufficient grounds were provided to affirm the dismissal as justifiable, despite procedural issues potentially present in the inquiry. The Claimant's past misconducts of similar nature were relevant to the determination of trustworthiness required in her position. (Paras 100-110, 120-130)
Facts of the case:
The Claimant was employed as a clerk/teller. She was dismissed allegedly for misappropriating RM320.00 from the petty cash in her control following a surprise cash check that revealed shortages. A DI affirmed the Bank's findings against her.
Findings of Court:
The Industrial Court found the misconduct cited by the Bank met the necessary grounds for termination with appropriate procedures followed throughout the inquiry. The dismissal was deemed able to maintain the trust integral to banking employment.
Issues: Whether the dismissal was with cause; whether the inquiry process abided by principles of natural justice; whether past misconduct justifies dismissal despite procedural facts.
Ratio Decidendi: The court concluded that despite allegations of procedural flaws, the findings of the Domestic Inquiry held strong evidence of misconduct, justified dismissal in accordance with banking standards requiring utmost integrity. The presence of previous acts of misconduct further solidified grounds for just cause.
Result: Claim dismissed.
| Table of Content |
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| 1. arguments presented by claimant. (Para 31 , 32) |
| 2. arguments presented by bank. (Para 33 , 34) |
THE FACTS
By a letter dated 19.3.1997 the Claimant was employed by the Bank as a clerk/teller.
"PRIVATE & CONFIDENCE
MS. HURRIYATI BINTI MOHD HUSSEIN
55-11-4 TAMAN PANTAI INDAH JALAN PANTAI DALAM
59200 KUALA LUMPUR
W.PERSEKUTUAN
HRD/P/R000380/96 19 March 1997
Dear Ms. HURRIYATI
Subject: OFFER OF EMPLOYMENT
With reference to your application for employment and to your subsequent interview with us, we are pleased to offer you the post of CLERICAL on the following terms and conditions:
(a) Salary : You will receive a monthly basic salary of RM738 (Ringgit Malaysia: Seven Hundred Thirty Eight Only).
(b) Probation : Three (3) months with a further extension of one (1) month if deemed necessary by Management. During this period, you will be required to pass the Typewriting Test of 25 words per minute and the Numeric Keyboard Test of 20 entries per minute as one of the conditions for confirmation and your service may be terminated by either party giving the other 24 hours notice of termination without giving any reason.
(c) Notice of Resignation : Upon confirmation of your employment, your service with the Bank may be terminated by either party giving the other one (1) months notice in writing or equivalent of one (1) months salary in lieu thereof.
(d) Termination of Employment : Notwithstanding conditions (b) and (c) above, the Bank reserve the right at all times to terminate your service forthwith if you should be found guilty of misdemeanour, misconduct, negligence or a breach of any of the existing terms and conditions of service or rules and regulations, expressed or implied.
(e) Station : You may be required to serve in any of the Banks with the United Overseas Bank Group and other subsidiary companies. Initially, you will be stationed at our UOB MEDAN PASAR, GENERAL and your will be subject to transfer to any our branches or department in HO at the discretion of Management.
(f) Disclosure of Information : You shall not disclosure or div ulge at any time either during your service with the Bank or thereafter any secrets, transactions or information in or relating to our business which may come within you knowledge or possession in the course of your employment with us and which should not be disclosed, divulged or made public save in the course of your duties.
(g) Conflict of Interest: : You shall not at any time during your service with the Bank, directly or indirectly without our consent in writing first obtained, engage or interest yourself whether for reward or gratuitously in any work or business other than in respect of your duties with the Bank, or undertake any such office notwithstanding that your engagement or interest in such office would not interfere with performance of your duties with the Bank.
(h) Medical Examination : This offer of employment is made subject to your passing the medical examination by out Bank Doctor.
(i) Date of Reporting for Duty : Please offer of employment to MR. TEO KANG SENG at 10-12 MEDAN PASAR, BANGUNAN UOB, MEZZANINE FLOOR, 50050 KUALA LUMPUR W.P, on Thursday 20/03/97 at 9.00 am.
(j) Other Conditions : Where two employees of the Bank with si gning power are joined in matrimony, one of the employees will be required to resign from the service of the Bank. In accordance with Section 62 of the Bank to its Financial Institution Act 1989 which prohibits lendings by the Bank to its directors, officers, employees at their immediate families, you are required to complete the attached declaration and return same to us for our records. For your information, an extract of the abovementioned section in the Banking and Financial Institution Act 1989 is enclosed.
Your other terms and conditions of employment shall be the same as those applicable to staff employed in a similar capacity. In addition, you shall immediately, upon entering the service of the Bank, be subject to
