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2024 MarsdenLR 1386
INDUSTRIAL COURT KUALA LUMPUR
ABD SHABAH BASARAH – Appellant
Versus
MALAYSIA AIRPORTS HOLDINGS BHD – Respondent
Award No: 1432 Of 2024 [Case No: 17/4-771/21]
The dismissal of an employee for alleged misconduct must be justified by evidence and adhere to proper procedures; failure to do so renders the dismissal unlawful.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee for alleged medical benefit abuse - Claimant dismissed for excessive medical claims - Court finds dismissal was without just cause or excuse due to lack of evidence and improper procedure during Domestic Inquiry. (Paras 12, 70)
(B) Burden of Proof - The employer bears the burden to prove misconduct on the balance of probabilities - Court emphasizes the need for just cause in dismissal cases. (Paras 14, 16)
(C) Misconduct - Defined as any conduct inconsistent with the faithful discharge of duties - Claimant's excessive clinic visits deemed unreasonable and unjustified. (Paras 48, 50)
(D) Proportionality of Punishment - Dismissal deemed excessive; lesser disciplinary actions should have been considered. (Paras 56, 60)
Facts of the case:
The Claimant, employed since November 2005, was dismissed on 23 July 2020 for alleged abuse of medical benefits, following an internal inquiry that found him guilty of excessive clinic visits. (Paras 1, 8, 9)
Findings of Court:
The Court concluded that the dismissal lacked just cause or excuse, emphasizing the importance of proper procedures and evidence in dismissal cases. (Paras 69, 70)
Issues: Whether the Claimant's dismissal was justified based on the alleged misconduct and if proper procedures were followed. (Paras 21, 22)
Ratio Decidendi: The Court ruled that the Company failed to establish the Claimant's misconduct on a balance of probabilities, and the dismissal was disproportionate to the alleged misconduct. (Paras 70, 78)
Result: Claimant awarded RM64,231.80 in compensation for wrongful dismissal. (Paras 78)
AWARD
A. Referencce
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of ABD SHABAH BASARAH (hereinafter referred to as "the Claimant") by MALAYSIA AIRPORTS HOLDINGS BERHAD (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 July 2020.
[3] The Claimant commenced his employment with the Company as an Aviation Security Assistant with effect from 16 November 2005.
[4] This present case relates specifically on the alleged medical benefit abuse by the employees of the Company including by the Claimant. Beginning February 2020 until April 2020, the Company had conducted an analysis of medical claims data for the year 2019 and discovered that the claims for medical expenses of employees based in Kota Kinabalu International Airport ("KKIA") were the highest in Malaysia.
[5] By a letter dated 14 May 2020, the Company issued a Show Cause Letter to the Claimant. After reviewing the Claimant's reply to show cause letter, the Company decided to conduct a Domestic Inquiry in order to provide the Claimant an opportunity to put forward his defence before an independent Panel of Inquiry.
[6] The Company issued a Notice of Domestic Inquiry dated 29 June 2020 to the Claimant to answer to the charge:
"Anda didapati telah menyalahgunakan faedah rawatan dan perubatan Syarikat di mana jumlah lawatan serta kos rawatan perubatan "General Physician" (GP) bagi diri anda dan tanggungan anda adalah tidak munasabah seperti dalam Larmpiran A dan Lampiran B serta jadual di bawah:
Perbuatan anda menyebabkan pihak Syarikat mengalami kerugian kerana menanggung kos rawatan dan perubatan yang tinggi dan menyebabkan Syarikat hilang kepercayaan ke atas integriti anda sebagai seorang kakitangan".
[7] The Claimant attended the Domestic Inquiry on 14 July 2020 and pleaded not guilty to the charge. After the conclusion of the Domestic Inquiry, the panel of Domestic Inquiry found the Claimant "Guilty" of misusing the Company's treatment and medical benefit.
[8] The Company decided to terminate the Claimant's employment with immediate effect vide a Letter of Dismissal dated 23 July 2020 which inter alia stated that "Berdasarkan bukti-bukti dan dokumen-dokumen yang dikemukakan semasa sesi Siasatan Dalaman, pihak Syarikat dengan ini mendapati anda BERSALAH ke atas kesalahan seperti tertera di dalam Notis Siasatan Dalaman bertarikh 29 Jun 2020. Setelah pertimbanagn teliti, pihak Syarikat dengan ini berkeputusan untuk menamatkan perkhidmatan anda berkuatkuasa 23 Julai 2020".
[9] The Claimant submits that he was unlawfully terminated and that his dismissal by the Company was without just cause or excuse.
[10] The Company however states that the termination of the Claimant employment was lawful with just cause or excuse. The Company prays for the punishment of dismissal to be upheld and the Claimant's claim to be dismissed.
C. Witnesses
[11] There were 4 witnesses testified in Court as follows:
CoW1: Dr Jasman Haris - former Medical Director of PMCare Sdn.Bhd. His witness statement was marked as CoWS1.
CoW2: Captain (B) Mazlan Fauzi - the Senior Manager Industrial Relations and Occupational Safety and Health of the Company. His witness statement was marked as CoWS2.
CoW3: Rehan Syafiq Bin Azizan - the panel of the Domestic Inquiry. His witness statement was marked as CoWS3.
CoW4: Mohd Adib Ismail - the Manager Industrial Relations - Human Capital Division of the Company. His witness statement was marked as CoWS4.
CLW1: Abd Shabah Basarah - the Claimant. His witness Statement was marked as CLWS1.
D. Duty Of The Industrial Court
[12] First and foremost, it is the duty of the Industrial Court to determine whether the termination or dismissal is with or without just cause or excuse. In Goon Kwee Phoy v. J & P Coats (M) Bhd; ,
