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2023 MarsdenLR 269
INDUSTRIAL COURT KUALA LUMPUR
MOHAMMAD ASLAM RAJA – Appellant
Versus
VELESTO DRILLING SDN BHD – Respondent
Award No: 2409 Of 2023 [Case No: 11(20)/4-2292/20]
The court upheld the dismissal of an employee for misconduct, confirming that the employer proved the dismissal was justified following a valid domestic inquiry.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal - The case involves the dismissal of an employee for alleged misconduct, specifically sexual harassment. The court found that the domestic inquiry followed proper procedures and the evidence presented was sufficient to establish the charges. (Paras 1, 12, 22)
(B) Burden of Proof - The burden lies on the company to prove that the dismissal was with just cause or excuse, which must be established on the balance of probabilities. (Paras 14, 22)
Facts of the case:
The Claimant was dismissed by the Company after a domestic inquiry found him guilty of misconduct, specifically allegations of sexual harassment. The Claimant contended that the dismissal was unlawful and sought reinstatement. (Paras 6, 8, 11)
Findings of Court:
The court affirmed that the domestic inquiry was valid, and the evidence supported the dismissal of the Claimant, concluding that the dismissal was with just cause. (Paras 20, 22)
Issues: The main issues addressed were whether the dismissal was with just cause or excuse and the validity of the domestic inquiry conducted by the Company. (Paras 22)
Ratio Decidendi: The court held that the Company met its burden of proof by demonstrating that the dismissal was justified based on the findings of the domestic inquiry, which was conducted fairly and according to due process. (Paras 22)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. minister's reference to industrial court. (Para 1 , 2 , 3) |
| 2. considerations for the award. (Para 4 , 5) |
| 3. claimant's employment details and allegations. (Para 6 , 7) |
| 4. claimant's claim of unlawful dismissal. (Para 8) |
| 5. remedies sought by claimant. (Para 9) |
| 6. company's case and response. (Para 10 , 11) |
| 7. role and burden of proof in industrial court. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 8. observations on domestic inquiry process. (Para 19) |
| 9. court's findings on domestic inquiry validity. (Para 20 , 21) |
| 10. evidence supports dismissal with just cause. (Para 22) |
Reference
[1] This is a reference dated 7 October 2020 by The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (Act 177) in respect of the dismissal of MOHAMMAD ASLAM RAJA ("the Claimant") by VELESTO DRILLING SDN BHD ("the Company") on 23 March 2020.
[2] This case was previously tried and concluded by the former Chairman of Court 20, Yang Arif Puan Rajeswari Karupiah who had since retired from the Industrial Court. This case has now been transferred to this Court and I have been requested to prepare and deliver the Award for this case.
[3] Subsection 23(6) of Act 177 provides that during the absence of or inability to act from illness or any other cause by the Chairman, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman. This Court, relying on subsection 23(6) of Act 177 and the principles laid down in the High Court case of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh and Anor ; ; [2011] 2 ILR 251, hands down the Award for this Case.
[4] In handing down this Award the following were considered by the Court:
(a) the record of proceedings;
(b) the notes of proceedings prepared by the former Chairman;
(c) Statement of Case dated 25 November 2020;
(d) Statement in Reply dated 15 March 2021;
(e) Rejoinder dated 29 March 2021;
(f) the Claimant's Bundles of Documents marked as CLB1, CLB2, CLB3 and CLB4;
(g) the Company's Bundles of Documents marked as COB1, COB2, COB3 and COB4;
(h) the Claimant's Written Submission dated 29 September 2023;
(i) the Company's Written Submission dated 6 October 2023;
(j) the Claimant's Written Submission in Reply dated 3 November 2023; and
(k) the Company's Written Submission in Reply dated 3 November 2023.
[5] The Company called four (4) witnesses ie Muhammad Alif Shaharudin ("COWS-1"), Ammar Bin Abdullah Habib ("COWS-2"), Nazrulliza Bin Mahmud Zuhodi ("COWS-3") and Najwa Syazni Mohamed Hazanee ("COWS-4"). Whilst the Claimant testified as the sole witness in this Case.
The Claimant's Case
[6] The Claimant commenced employment with the Company as an Offshore Installation Manager on 1 August 2019 whereby he was entitled to a day rate of USD650.00 and travelling allowance of US150.00 per hitch during crew change. The Claimant's terms and conditions of employment were stipulated in a contract of employment dated 2 August 2019.
[7] The Claimant made the following averments:
(i) after completing his training the Claimant was sent to Singapore to support repair jobs at the Company's oil rig for a nine (9) days period and was then sent to another oil rig to support the operations of the said oil rig;
(ii) during his field break at home, he was requested to travel to Malaysia to be interviewed by the Company's client and was confirmed to be assigned as the Offshore Installation Manager at another oil rig belonging to the Company;
(iii) he assumed and discharged his duties as the Offshore Installation Manager until 3 March 2020 when he was called to the Company's Head Office in Kuala Lumpur. The Claimant was not informed of the reasons for him to leave the rig at such short notice;
(iv) he was shocked when COWS-3 informed him the purpose of the meeting was relating to an investigation of allegations made against him by COWS-2 ie the Claimant had allegedly harassed COWS-2 on b
