The employer must prove just cause for dismissal with cogent evidence; dismissal based on assumption or insufficient evidence is deemed arbitrary.

[NO 85 OF 2011]

This is a Ministerial reference to the Industrial Court under section 20(3) of the Industrial Act 1967 ("Act") regarding the dismissal of Zanariah binti Abdul Hamid ("the claimant") by Sakti Bacaan Sdn Bhd (" the company") on 17 November 2007.

Brief Facts Of The Case

The claimant commenced an employment with the company in 1994 as Assistant Sales with a monthly salary of RM450.00. However, the company contends that the claimant had stopped working for the company after first joining the company but joined again the company in 1996. However, the claimant said that during that period she was on medical leave. Vide a letter dated 17 November 2007 (exhibit "CL-1" of the Statement Of Case (SOQ), the company terminated the services of the claimant for criminal breach of trust. For ease of reference the claimant's termination letter is reproduced below:-

The Issue

The sole issue before this Court is whether the dismissal of the claimant by the company is with or without just cause or excuse.

The Law

The Federal Court in Goon Kwee Phoy v. J & P Coats (M) Bhd had expressed that it is the duty of the Industrial Court to determine whether the termination or dismissal is with or without just cause or excuse; if the Employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the Court is the reason advanced by it and that Court or the High Court cannot go into another reason not relied on by the Employer or find one for it.

It is trite, for dismissal cases that the burden is on the Employer to prove the case against the Employee with cogent and convincing evidence on a standard of a balance of probability: Goon Kwee Phoy (supra); Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, . The legal position here is also well-stated as per Halsbury's Laws of Malaysia, vol. 7 at p 120.090 -120.0921, as follows:-

"The burden of proving that the dismissal of a workman is with just cause or excuse is on the employer The standard of proof is on the balance of probabilities The employer must convince the Court that the punishment was proportionate to the nature and quality of the alleged wrongdoing....

The following reasons can constitute just cause or excuse for dismissal:-

(1)

(2)

(3) misconduct by the employee;

(4)

'misconduct' connotes to conduct that is inconsistent with the fulfillment of the express or implied conditions of service. Some examples of types of misconduct are..., wilfully disobeying lawful and reasonable orders or precedents,... unprofessional conduct and breach of company policy..., using violence on superior or co-employee....".

"Misconduct" refers to conduct so seriously in breach of the accepted practice that, by standards of fairness and justice, the employer should not be bound to continue the employment (see Syarikat Kenderaan Melayu Kelantan Sdn Bhd v. Transport Workers Union , ).

Evidence By The Parties

Company's Case

In this case the company called 4 witnesses The company's first witness (COW1) is Koh Heng Lian. COW1 testified orally in Court that the company at the material time was in the business of operating book shops in schools selling books and stationary to school which involves cash transaction. In this case, COW1 testified that the claimant was assigned to manage the operation of the book shop in Sekolah Kebangsaan Abdul Samad, Kapar, Selangor commencing from 22 October 2007. However, COW1 said after stock check for the said book shop was done by Syed Izzat Shah bin Syed Zafree (COW2) and one Noorezan binti Osman (Noorezan) on 15 November 2007, COW2 informed his father Koh Eng Koo