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2023 MarsdenLR 1663
INDUSTRIAL COURT PENANG
SHAKIROH ABDUL KADER – Appellant
Versus
PETRONAS CHEMICALS FERTILISER KEDAH SDN BHD – Respondent
Award No: 1289 Of 2023 [Case No:9/4-2285/21]
The dismissal of an employee for misconduct involving conflict of interest is justified if the employer proves the misconduct on the balance of probabilities, considering the seriousness of the misconduct.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed for misconduct involving conflict of interest - Court determined whether dismissal was with just cause or excuse - Burden of proof on employer to establish misconduct and justification for dismissal. (Paras 1, 13, 15, 44, 55)
(B) Misconduct - Definition and standard of proof - Misconduct defined as conduct inconsistent with faithful discharge of duties - Standard of proof based on balance of probabilities. (Paras 50, 16)
(C) Proportionality of punishment - Doctrine of proportionality applies; dismissal must be appropriate to the misconduct - Court found acts of misconduct serious enough to warrant dismissal. (Paras 47, 54)
Facts of the case:
The Claimant was employed as Supervisor III (Administration) and was dismissed for alleged misconduct involving conflict of interest with vendors while handling cafeteria operations. The Company claimed the Claimant breached the Code of Conduct and Business Ethics (CoBE). (Paras 4, 10, 12)
Findings of Court:
The Court found that the Company had established the Claimant's guilt on multiple allegations of misconduct, justifying her dismissal based on the seriousness of the breaches. (Paras 44, 55)
Issues: The main issues were whether the Claimant was guilty of the misconducts alleged and whether those misconducts warranted dismissal. (Paras 17)
Ratio Decidendi: The court ruled that the Claimant's actions constituted serious misconduct that breached her duty of good faith and fidelity, justifying dismissal. The Company proved its case on the balance of probabilities. (Paras 55)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. overview of the case and parties involved. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. claimant's and company's arguments regarding misconduct. (Para 9 , 10 , 11 , 12) |
| 3. role of the industrial court in determining dismissal. (Para 13 , 14 , 15 , 16) |
| 4. issues to be determined regarding misconduct. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 5. court's findings on allegation 1 and claimant's defense. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 6. court's findings on allegation 2 and claimant's defense. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 7. court's findings on allegations 4 and 5 with defenses. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43) |
| 8. evaluation of misconduct and proportionality of punishment. (Para 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53) |
| 9. court's conclusion on the dismissal. (Para 54 , 55) |
[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 Shakiroh binti Abdul Kader (hereinafter referred to as "the Claimant") with regard to her dismissal by Petronas Chemicals Fertiliser Kedah Sdn Bhd (hereinafter referred to as "the Company") effective 20 October 2020.
[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 22 October 2021;
(b) the Company's Amended Statement In Reply dated 24 June 2022;
(c) the Claimant's Amended Rejoinder dated 8 July 2022;
(d) the Company's witness statement (Hafiz bin Hazaipah) marked as "COWS-1";
(e) the Company's witness statement (Rosian bin Abdullah) marked as "COWS-2";
(f) the Company's witness statement (Azmin bin Abd Aziz @ Nong) marked as "COWS-3";
(g) the Company's witness statement (Mailani Chik) marked as "COWS-4";
(h) the Claimant's witness statement (Shakiroh binti Abdul Kader) marked as "CLWS-1";
(i) the Company's Bundle of Documents marked as "COB-1";
(j) the Company's Supplementary Bundle of Documents marked as "COB-2";
(k) the Company's Supplementary Bundle of Documents (2) marked as "COB-3"; and
(l) the Claimant's Bundle of Documents marked as "CLB-1";
Brief Facts Of The Case
[3] The Company is a wholly owned subsidiary of Petroliam Nasional Berhad (hereinafter referred to as "PETRONAS").
[4] The Claimant commenced her employment with the Company on 16 August 1997 as a General Clerk, Grade 10 with a monthly salary of RM919.00 and housing allowance of RM175.00 and was confirmed in the said position with effect from 16 February 1998. In 2008, the Claimant was promoted to the position of Supervisor (Finance), Grade 12. The Claimant was subsequently transferred to the Corporate Communication and Administration (CCA) Department (hereinafter referred to as "the CCA Department") as Supervisor III (Administration).
[5] Pursuant to a letter dated 1 June 2020 (hereinafter referred to as "the Letter of Show Cause"), the Company laid down six charges of misconduct against the Claimant and instructed the Claimant to submit her written explanation within seven days from the date of the Letter of Show Cause. The Claimant thereafter provided her explanation vide letter dated 3 June 2020 (hereinafter referred to as "the Reply to the Letter of Show Cause") wherein she denied all allegations.
[6] Dissatisfied, the Company issued a notice directing the Claimant to attend a session of domestic inquiry (hereinafter referred to as "the DI") on 20 July 2020 (hereinafter referred to as "the Notice of DI"). The Claimant was subsequently found guilty of all charges except for Charge No 6.
[7] By way of a letter dated 20 October 2020 (hereinafter referred to as "the Letter of Dismissal"), the Company dismissed the Claimant with immediate effect. The Claimant appealed against the Company's decision and requested that she be reinstated vide letter dated 19 November 2020 (hereinafter referred to as "the Letter of App
