Back
2025 MarsdenLR 778
INDUSTRIAL COURT KOTA KINABALU
SYLVIA BENJAMIN – Appellant
Versus
CELCOM MOBILE SDN BHD – Respondent
Award No: 387 Of 2025 [Case No: 17/4-95/22]
The dismissal of an employee must be justified by proven misconduct and conducted with procedural fairness; failure to do so renders the dismissal unjust.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Allegations of misconduct including processing registrations without customer presence - Claimant's employment terminated for serious misconduct - Court's duty to determine if misconduct established and if dismissal was justified - No domestic inquiry conducted prior to dismissal - Court found dismissal was without just cause or excuse. (Paras 1, 12, 21, 65)
(B) Burden of Proof - Employer bears the burden to prove misconduct and that it warrants dismissal - Standard of proof is on a balance of probabilities. (Paras 15, 17, 19)
(C) Proportionality of Punishment - Dismissal deemed too harsh given the Claimant's clean record and lack of actual loss to the Company - Lesser disciplinary actions could have been considered. (Paras 59, 65)
Facts of the case:
The Claimant was employed since 2000 and dismissed on 23 June 2021 for alleged misconduct involving improper registration practices. The Company claimed serious misconduct while the Claimant argued her dismissal was unjust and without proper inquiry. (Paras 3, 9, 28)
Findings of Court:
The Court found that the Claimant's dismissal was not justified as the Company failed to conduct a proper domestic inquiry and did not establish just cause for dismissal. (Paras 65, 66)
Issues: Whether the Claimant's dismissal was with just cause or excuse and whether the Company followed proper procedures. (Paras 21, 65)
Ratio Decidendi: The Court ruled that the absence of a domestic inquiry and the failure to provide the Claimant with an opportunity to defend herself rendered the dismissal unjust. The Court emphasized the need for proportionality in disciplinary actions. (Paras 31, 59, 65)
Result: The Claimant was awarded compensation in lieu of reinstatement and back wages totaling RM128,040.00. (Paras 74, 75)
AWARD
A. Reference
[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of Sylvia Benjamin (hereinafter referred to as "the Claimant") by Celcom Mobile Sdn Bhd (herein referred to as "the Company").
B. Preface
[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal by the Company with effect from 23 June 2021.
[3] The Claimant commenced her employment effective 19 June 2000 with the Company under a letter of appointment dated 13 June 2000 as a Kerani Am. The Claimant's last post in the Company was as a Retail Associate at Bluecube, 1Borneo Kota Kinabalu. At the time of dismissal, the Claimant last drawn salary was RM3,880.00 including monthly fixed allowances.
[4] At all material times, the Claimant's duties and responsibilities as Retail Associates were as follows:
(a) Conducting product demonstrations. Execution of retail operations activities and application of effective sales techniques to understand customer needs and promote relevant products and services ie sales, servicing and administration at outlets and comply with the guidelines, policies, procedures and Service Level Agreements (SLAs).
(b) Create conversations and engage with the customers to convert into sales opportunities (postpaid/prepaid registrations, devices, VAS and accessories, etc.)
(c) Result-driven and stay up-to-date with the product features and maintain retail outlet visual appearance in high standards.
(d) Professionally and accurately handle customers' enquiries and requests by applying good knowledge of modern tools. Policies and processes. Execute and adhere to retail outlet and service impression as well as service mannerism guidelines as per company's direction.
(e) Achieve desirable Net Promoter Score (NPS) by providing exceptional service to the customers. Providing customers with advisory. Product ownership experience and good after sales support.
(f) Resolve and update customers' enquiries and complaints and the service is quick and efficient to ensure maximum customer satisfaction by taking ownership of customers' issues.
(g) Involve in special events or outside sales and servicing initiatives ie device launching as set by the management and execute departmental improvement initiatives at the outlet level.
(h) Provide continuous and positive feedback to Retail Manager/Retail Senior Manager on operations and other relevant matters for improvement purposes.
(i) To maintain accuracy of transactions, inquiries and complaints to meet required Key Performance Indicators (KPIs) thereby increasing customers' trust and satisfaction.
(j) Execute departmental improvement initiatives at the outlet level and perform any other duties as directed by the superior.
[5] This present case relates specifically on the alleged misconducts by the Claimant during her employment as Retail Associates of the Company. The allegation of misconducts against the Claimant are as follows:
1. Between 11 October 2020 and 13 January 2021, the Claimant had processed 19 Postpaid registrations via Celcom Pulse Optical Character Recognition ("OCR") without the customers' presence by using MyKad images captured from photocopied paper and/or images displayed on another device or smartphone screen.
2. Between 11 October 2020 and 13 January 2021, the Claimant had registered the same customers multiple times using the same MyKad images captured via Celcom Pulse OCR for the Family Line plans. Some of the names and images were used again in the following month.
3. It was revealed that 8 out of 19 activations that were completed and registered by the Claimant under the Family Plan had been disconnected. All the disconnected Postpaid accounts were done without the customers' presence and within the 1st month bill cycle, taking advantage of the prorate monthly subscription to ensure zero outstanding in the final bill.
