Employers must establish misconduct with credible evidence, and dismissals must align with due process to ensure just cause under the Industrial Relations Act.

[1] This case was referred to the Industrial Court by the Honourable Minister of Human Resources pursuant to subsection 20(3) of Industrial Relations Act 1967 (" IRA ") arising out of the dismissal of the 1st claimant by the bank on 11 November 2008. Subsequently, pursuant to the Industrial Court Interim Award No: 455 of 2013 dated 14 March 2013, this case was consolidated with Case No: 26 (19)/4-540/11, which was referred to the Industrial Court by the Honourable Minister of Human Resources pursuant to subsection 20(3) of arising out of the dismissal of the 2nd claimant by the bank on 10 November 2008.

Background Facts

[2] The 1st claimant commenced employment with the Southern Bank Berhad ("SBB") as a Clerk with effect from 1 July 1988. Thereafter, the 1st claimant held the position of Branch Operations Manager ("BOM") with a corporate rank of Senior Executive at SBB's Cheras branch from 18 October 2004, where he remained till the merger of SBB with the bank on 1 January 2006. Following the merger, the 1st claimant was appointed as Assistant Manager at CIMB bank. Sometime on 12 March 2007, he was posted to CIMB's Sungai Buloh branch as the Customer Service Manager and on 15 June 2007, was the Branch Broking Executive ("BBE") at the bank's Balakong branch.

[3] The 2nd claimant commenced employment with Bank Bumiputra Malaysia Berhad ("BBMB") on 1 March 1993. Pursuant to the merger between BBMB and the bank, the 2nd claimant was offered continued employment with the bank. Thereafter, the 2nd claimant was posted to the bank's Jalan Tun Perak branch and was in charge of fixed deposits, current accounts and remittances operations. The 2nd claimant was subsequently transferred to the bank's Kajang branch as Head of Customer Services. The 2nd claimant last held position was Acting Branch Manager ("ABM")/Officer in Charge ("OIC") of the bank's Balakong branch.

[4] The 1st and 2nd claimants were dismissed for committing misconducts, which were related to the fraud(s) perpetrated by one Customer Service Officer ("CSO") known as Shirlene Santhi a/p T Mariadas ("Shirlene") who was based at the Balakong branch. The bank alleged that the misconducts of the 1st and 2nd claimants were interrelated on the basis that they are related to the fraud(s) perpetrated by Shirlene. Apart from the two claimants, five other employees were dismissed, including Shirlene. Seven employees received warning letters and nine employees were issued with letters of caution. In total, 23 employees were disciplined.

[5] The events leading to the foregoing disciplinary action are as follows:

(i) Sometime at the end of February 2008, the bank had been notified of suspected fraudulent withdrawals of fixed deposit ("FD") which were placed at the bank's Balakong branch. The alleged fraud was uncovered by the KL 2 Business Centre, located at the Pearl Point Shopping Mall.

(ii) The bank had been alerted of the fraudulent liquidations of FDs as the bank's client had complained that 53 of its FD accounts, which were pledged as collateral for credit facilities to PA Extrusion (M) Sdn Bhd ("PA Extrusion"), had been withdrawn without its approval or knowledge. As a result, the Group Internal Audit Department ("GIAD") of the bank conducted the relevant investigation.

(iii) The investigation discovered that Shirlene had committed criminal breach of trust by liquidating/fraudulently withdrawing 118 FDs of 33 customers of the bank totalling RM8.7 million, which included 53 FDs under lien amounting to RM5,206,374.31 pledged for credit facilities and granted to PA Extrusion. The fraudulent upliftments were not limited to PA Extrusion. The illegal withdrawals of FDs committed by Shirlene continued without detecti