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2024 MarsdenLR 1707
INDUSTRIAL COURT KUALA LUMPUR
NIZAM ISKANDAR BAHROM – Appellant
Versus
AMANAH IKHTIAR MALAYSIA SDN BHD – Respondent
Award No: 95 Of 2024 [8(20)/4-2754/20]
The employer must prove misconduct and that dismissal was justified based on established charges, with the standard of proof being on the balance of probabilities.
Headnote:(A) Industrial Relations Act 1967 - Section 20 - Dismissal of employee - The court examined whether the misconduct alleged by the employer was established and whether such misconduct constituted just cause for dismissal - The burden of proof lies with the employer to demonstrate just cause for dismissal - The court found the claimant's misconduct proven on the balance of probabilities, justifying the dismissal. (Paras 13, 16, 19, 55)
(B) Burden of Proof - In dismissal cases, the employer must provide convincing evidence that the employee committed the alleged offences - The standard of proof is on the balance of probabilities. (Paras 16, 19)
(C) Domestic Inquiry - Findings from a domestic inquiry are not binding on the Industrial Court, which rehears the matter afresh. (Paras 22)
Facts of the case:
The claimant was dismissed after being found guilty of six charges of misconduct during a domestic inquiry, including negligence in project management and improper financial conduct. (Paras 8, 11, 51)
Findings of Court:
The court concluded the employer had justified the dismissal based on the claimant's misconduct, which caused financial loss to the company. (Paras 53, 55)
Issues: The primary issues were whether the claimant's alleged misconduct was established and whether it constituted just cause for dismissal. (Paras 18, 51)
Ratio Decidendi: The court ruled that the employer had discharged its burden of proof, establishing that the claimant's actions warranted dismissal based on the balance of probabilities. (Paras 55)
Result: The claimant's case is hereby dismissed.
AWARD
Reference
[1] This is an order of reference dated 18 November 2020 by the Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of Nizam Iskandar Bin Bahrom (the Claimant) by Amanah Ikhtiar Malaysia Sdn Bhd (the Respondent) on 31 March 2020.
Brief Facts
[2] The Company is Amanah Ikhtiar Malaysia Sdn Bhd., with a business address at No 3, Jalan Cempaka SD 12/1A, Bandar Sri Damansara, PJU9, 52200 Kuala Lumpur.
[3] The Claimant commenced employment with the Company on 11 June 2013 as a Project Manager. At the time of dismissal, the Claimant's last drawn basic salary was RM12,124.00.
[4] The Company directed an Internal Audit concerning the administration, operation, and finance of the Company and its subsidiaries.
[5] Pursuant to the Internal Audit findings and to facilitate further audits, the Claimant was suspended for two weeks on half pay and extended after that with full pay.
[6] The Company engaged KPMG Management and Risk Consulting Sdn Bhd in February 2019 to conduct an independent audit of the Company.
[7] Upon releasing the KPMG Audit Report, the Company issued a memorandum of show cause to the Claimant, to which the Claimant has replied.
[8] On 16 January 2020, the Company proceeded to issue a Notice of Domestic Inquiry for six charges of misconduct against the Claimant.
[9] During the Domestic Inquiry, the Claimant denied the charges against him and shifted the blame to Shaifful Idris Bin Abdul Rahim (the Company's former Chief Executive Officer) and Datuk Zubir Bin Harun (former Board Member of Amanah Ikhtiar Malaysia).
[10] For the other 3 charges, the Claimant avered that the task was not under his job description.
[11] The Domestic Inquiry Panel found him guilty of all six charges.
[12] Later, the Company dismissed the Claimant.
Roles And Functions Of The Industrial Court
[13] The role of the Industrial Court under s 20 of the Industrial Relations Act 1967 [Act 177] is briefly explained in the case Milan Auto Sdn Bhd v. Wong Seh Yen , . His Lordship Justice Mohd Azmi bin Kamaruddin FCJ, in delivering the judgment of the Federal Court had the occasion to state the following:
"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s 20 is two-fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal. Failure to determine these issues on the merits would be a jurisdictional error...
[14] The above principle was further reiterated by the Court of Appeal in the case of K A Sanduran Nehru Ratnam v. I-Berhad , , where His Lordship Justice Mohd Ghazali Yusoff JCA outlined the function of the Industrial Court as follows:
"[21] The learned judge of the High Court held that the Industrial Court had adopted and applied a wrong standard of proof in holding that the respondent has failed to prove dishonest intention and further stating that the respondent has not been able to discharge their evidential burden in failing to prove every element of the charge. He went on to say that the function of the Industrial Court is best described by the Federal Court in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd and Another Appeal, [1995] 2 MLJ 753 where in delivering the judgment of the Court Mohd Azmi FCJ said (at p 352):
On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under s 20 of the Act (unless otherwise lawfully provided by the terms of the reference), is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the di
