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2020 MarsdenLR 159
COURT OF APPEAL PUTRAJAYA
MARITIME INTELLIGENCE SDN BHD – Appellant
Versus
TAN AH GEK – Respondent
[Civil Appeal No: J-02(A)-111-01-2019]
An employer must adhere to proper procedures in dismissing an employee, including clearly stating grounds for dismissal. New grounds introduced later cannot justify dismissal if not previously communicated.
Headnote:(A) Employment Act 1955 – Section 14 – Dismissal of employee – Proper procedure and rights of employee during Domestic Inquiry and Industrial Court process – Company cannot base dismissal on grounds not presented in notice to show cause or during Domestic Inquiry – Evidence of workman's unaccredited degree introduced late is not a valid ground for dismissal if not previously pleaded. (Paras 12, 14, 29, 116)
(B)
Principle of natural justice – Importance of giving the workman an opportunity to defend against all allegations during Domestic Inquiry – If grounds for dismissal are not clearly communicated, any subsequent reliance on them in Industrial Court is improper. (Paras 8, 12, 36, 110)
(C)
Misrepresentation of qualifications – Workman was not found to have misled the Company regarding her qualification since it was never raised as a ground for dismissal – The requirement for an accredited degree must be communicated clearly during the hiring process. (Paras 8, 106, 112)
(D)
Findings of Court – The learned Chairman found the dismissal was without just cause, supporting decisions made by both Industrial Court and High Court. (Paras 9, 106, 115) (E) Result – Appeal dismissed with costs awarded to the claimant. (Paras 116, 117)
JUDGMENT
[1] The pivotal issue in this appeal is whether the Industrial Court was right in rejecting the ground of dismissal which was not stated in the notice to show cause issued to a workman and thus not relied on in the notice of dismissal of the workman. May a Company justify the dismissal of the workman on a ground raised for the first time at the Industrial Court and not raised before in the notice to show cause and in the Domestic Inquiry as well as in the notice of dismissal of the workman?
[2] No evidence was thus adduced by the Company against the workman at the Domestic Inquiry held by the Company with respect to the status of the workman's postgraduate degree.
[3] The evidence before the Domestic Inquiry was on the various actions of the workman said to be the misconducts of undermining the authority of a director of the Company, unethical behaviour, humiliating the tea lady and bad-mouthing the academic staff.
[4] Suffice to say that the Domestic Inquiry found the charges proved and the workman was dismissed from employment on 5 February 2015.
Before The Industrial Court
[5] The workman referred her dismissal to the Industrial Court as the claimant there.
[6] At the Industrial Court, for the first time in its Reply to the claimant's Statement of Case, the Company had narrated that the postgraduate degree of the claimant said to have been from Newport University in the United States of America is not from an accredited university. It was not pleaded that the claimant had misled or defrauded the Company with respect to stating in her CV when applying for the post of Vice President for Services and Registrar of the education institute called the Netherlands Maritime Institute of Technology, when she stated that her Master's degree had been from Newport University in 1997.
[7] Learned counsel for the Company stated that there were two issues before the Industrial Court ie:
(a) whether the misconduct of improper conduct of the claimant had been proved; and
(b) whether the claimant was qualified for the position she was seeking to be reinstated to.
[8] The Industrial Court rejected this ground of justifying the dismissal of the claimant as it was not stated in the notice to show cause and neither was it brought up before the Domestic Inquiry nor stated as a ground of dismissing the claimant in the notice of dismissal to the claimant.
[9] On the charge of improper conduct the learned Chairman of the Industrial Court considered and analysed each of the alleged misconduct in detail and concluded that the Company had not proved the alleged misconducts. The Industrial Court also held that the findings of the Domestic Inquiry panel were against the principle of natural justice as two of the panel members were ranked below the claimant. However, the Chairman also found that there was contributory conduct by the claimant but that did not warrant dismissal but instead the compensation for wrongful dismissal should be reduced accordingly. The Industrial Court awarded the sum of RM288,000.00 as compensation for wrongful dismissal and back wages.
[10] The Company took umbrage with the Award of the Industrial Court chiefly on the ground that the learned Chairman had completely ignored the pleaded issue that the claimant's postgraduate qualification was not from an accredited university and that the degree is fake.
At The High Court
[11] The High Court saw no good reason to disagree with the Industrial Court where the findings of facts are concerned and was satisfied that the Award of the Industrial Court was not infected with the infirmities of irrationality, illegality or procedural impropriety.
[12] The High Court further agreed with the Industrial Court that the Company, having not raised the issue of the claimant's postgraduate degree not being issued by an accredited University in its notice to show cause and at the Domestic Inquiry as well as in the notice of dismissal, it cannot raise it for the first time at the Industria
