The court affirmed that dismissal without just cause requires the employer to prove misconduct through valid inquiry, adhering to principles of natural justice and the standard of proof on balance of probabilities.

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of Mohd Azhar bin Atan ("Claimant") by Malaysian Industrial Development Finance Berhad ("Company") on the 3 December 2019.

[2] The Ministerial reference in this case required the court to hear and determine the Claimant's complaint of dismissal by the Company on 3 December 2019.

[3] This court considered the notes of proceedings, documents and cause papers in handing down this Award namely:

(i) Statement of Case dated 3 August 2020

(ii) Statement in Reply dated 24 November 2020

(iii) Rejoinder dated 2 December 2020

(iv) Claimant's Bundle of Documents - CLB-1, CLB-2, CLB-3, CLB-4

(v) Company's Bundle of Documents - COB-1, COB-2, COB-3

(vi) Claimant's Witness Statement - CLW-1S (Mohd Azhar bin Atan)

(vii) Company's Witness Statement - COWS-1 (Vasuthevan a/l S Gopalakrishnan), COWS-2 (Sanisah binti Wan Abdul Kadir), COWS-3 (Mastura binti Md Mukhlis), COWS-4 (Noorfazilah binti Rebatin), COWS-5 (Mohamed Firdaus OAP Kader Mohideen), COWS-6 (Mohd Seeddiq bin Adenan), COWS-7 (Shazalina binti Ahmad), COWS-8 (Dato' Charon Wardini)

(viii) Claimant's Written Submission

(ix) Company's Written Submission

(x) Claimant's and Company's Bundle of Authorities

Background

[4] The dispute before this court is the claim by the Claimant that he had been dismissed from his employment without just cause or excuse by the Company on the 3 December 2019.

[5] By a letter of offer dated 15 March 2004, the Claimant was offered employment with the Company as a Clerk. The Claimant's last drawn salary was RM5,121.00.

[6] On 11 November 2019, the Company issued a show cause letter to the Claimant pertaining to an alleged misconduct by the Claimant namely to have touched Puan Noorfazilah binti Rebatin inappropriately at the back staircase during a fire drill exercise.

[7] On 19 November 2019, the Company convened a Domestic Inquiry (DI) against the Claimant. At the DI, a charge was preferred against the Claimant. The substance of the charge is as follows:

At approximately between 10.30 am to 11.30 am on 30 October 2019 you have allegedly touched Puan Noorfazilah binti Rebatin ("Puan Noorfazilah") inappropriately at the back staircase of Menara MIDF. This incident was reported to have occurred during the fire drill exercise in which Puan Noorfazilah was assigned by the OSHA Committee to play the role of a "fire victim" and under the Menara MIDF Emergency Response Team structure, you are a member of the Medic Team.

[8] The Panel came to the conclusion that the charge against the Claimant has been proved.

[9] On 3 December 2019, the Company informed the Claimant of the result of the DI and his dismissal with immediate effect.

The Duty Of The Industrial court

[10] The Supreme court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd ; [1988] 1 MLJ 92; [1988] 1 CLJ Rep 298 held that:

"When the Industrial court is dealing with a reference under s 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse"

[11] The Federal court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 MLRA 415; held that:

"Where representations are made and are referred to the Industrial court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or ex