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2024 MarsdenLR 281
INDUSTRIAL COURT SABAH
TONNY CHAN SHIK FONG – Appellant
Versus
MALAYSIA AIRPORTS HOLDINGS BERHAD – Respondent
Award No: 1124 Of 2024 [Case No: 17/4-762/21]
The dismissal of an employee must be justified by clear evidence of misconduct, and the punishment must be proportionate to the alleged offense.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – Claimant dismissed for alleged misuse of medical benefits – Domestic Inquiry found Claimant not guilty – Court determined dismissal was without just cause or excuse – Company failed to prove misconduct on balance of probabilities – Dismissal deemed null and void. (Paras 12, 35, 63)
(B) Burden of Proof – Employer bears the burden to prove misconduct – Standard of proof is on balance of probabilities – Employer must provide convincing evidence of alleged misconduct. (Paras 14, 16)
(C) Proportionality of Punishment – Dismissal deemed disproportionate for first offender – Lesser disciplinary actions should have been considered. (Paras 39, 56)
Facts of the case: The Claimant was dismissed from his position as Aviation Security Assistant after being accused of misusing medical benefits. A Domestic Inquiry found him not guilty, yet the Company terminated his employment citing misconduct. (Paras 9, 35)
Findings of Court: The Court found that the Company failed to establish misconduct and that the dismissal was without just cause or excuse. (Paras 63, 64)
Issues: Whether the dismissal was with just cause or excuse and whether the punishment was proportionate. (Paras 21, 39)
Ratio Decidendi: The Court ruled that the Company did not provide sufficient evidence to justify the dismissal, and the punishment was disproportionate given the Claimant's clean record and the absence of misconduct. (Paras 63, 64)
Result: Claimant awarded compensation in lieu of reinstatement and back wages totaling RM107,513.56. (Paras 72, 73)
AWARD
A. Reference
[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 TONNY CHAN SHIK FONG (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 Aviation Security Assistant- Grade 11 on 17 September 2007. The Claimant's last post in the Company before the termination of his service was as an Aviation Security Assistant - Grade 13 with his last drawn salary of RM3089.47.
[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 dated 20 May 2020, 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 15 July 2020 and pleaded not guilty to the charge. After the conclusion of the Domestic Inquiry, the panel of Domestic Inquiry has found the Claimant "Not Guilty" of misusing the Company's treatment and medical benefit.
[8] The Company, however, 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: Captain (B) Mazlan Fauzi - the Senior Manager Industrial Relations and Occupational Safety and Health of the Company. His witness statement was marked as CoWS1.
CoW2: Mohd Adib Ismail - the Manager Industrial Relations - Human Capital Division of the Company. His witness statement was marked as CoWS2.
CoW3: Dr Jasman Haris - former Medical Director of PMCatre Sdn.Bhd. His witness statement was marked as CoWS3.
CLW1: Tonny Chan Shik Fong - 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
