The employer must prove just cause for dismissal; failure to provide warnings or conduct a Domestic Inquiry undermines the dismissal's validity.

AWARD

Vanithamany Sivalingam:

Reference

[1] This is a reference by Honorable Minister of Human Resource, Malaysia to this Industrial Court under s 20(3) of the Industrial Relations Act 1967 ("The Act") for an award in respect of the dispute arising out of the alleged termination of Brando Paul Raj Pillai ("the Claimant") by his employer, The Grace Academy Sdn Bhd ("Company").

[2] This Court takes cognizance of the following bundles, statements, submission and cause papers filed:

Documents In Court Files

I. Statement of case dated - 17 September 2021;

II. Statement of reply dated - 15 October 2021;

III. Rejoinder dated - 12 November 2021;

IV. Claimant's Bundle of Document - (CLB1, CLB2 & CLB3);

V. Company's Bundle of Document - (COB1, COB2, COB3);

VI. Witness Statement of the Claimant - Brando Paul Raj Pillai (CLWS1);

VII. Witness Statement of the Company - Dato' John William Xavier (COWS1);

VIII. Witness Statement of the Company - James Tan Kong Ming (COWS2);

IX. Witness Statement of the Company - Pravina A/P Paramasivam (COWS3);

X. Witness Statement of the Company - Vikram Pio Martin (COWS4);

XI. Company's Written Submission dated - 19 August 2024;

XII. Claimant's Written Submission dated - 19 August 2024;

XIII. Company's Written Submission In Reply dated - 18 September 2024;

XIV. Claimant's Written Submission In Reply dated - 2 September 2024;

XV. Company's Bundle of Authorities; and

XVI. Claimant's Bundle of Authorities.

The Claimant's Case

[3] The Claimant claimed that he was employed by the by Grave Assembly of God as Associate Principal for Grace Resource Centre - Primary & Secondary, commencing 1 January 2016 till 31 January 2016. Subsequently, the Claimant was offered a contract of service from 1 January 2017 till 31 December 2017 as Principal for Grace Assembly of God. Pursuant to the restructuring exercise, the Claimant tendered his resignation as the Principal of Grace Assembly of God on 31 March 2017 with the condition that he is offered the same position with the unchanged terms and condition at the Company (The Grace Academy Sdn Bhd). Via contract of service dated 1 April 2017, the Company offered an employment to the Claimant as Principal and the Claimant's contract was renewed from 1 January 2018 till 31 December 2018 and the Claimant was promoted as the Principal of Grace Resource Centre ("GRC") effective from 1 January 2018 with an increment. Thereafter the Claimant received renewal of the contract and increment till 2019. On 1 January 2020, the Claimant's contract was renewed till 31 December 2020 with an increment. The Claimant avers that his employment was permanent in nature.

[4] Via letter 24 September 2020, the Claimant was informed that he was terminated from the position of Principal of GRC with immediate effect on the ground of that the Claimant had allegedly;

i) contravened the restraint clause in his contract of employment dated 1 January 2017; and

ii) defied the Board's Directive as per the Company's letter dated 24 July 2020 thereby committing a gross insubordination.

[5] The Claimant claims that he was not guilty of any of the allegations levelled against him and averred that during the Board's meeting on 9 April 2020, the Claimant was questioned on his gym business, and he had explained to the Board that his business only opens at night, and did not clash with his work in the daytime. He also informed the Board that he has his own staffs running and managing the gym for him. The Claimant was not issued any warning letter nor did the Company raise this issue thereafter.

[6] The Claimant avers that he was not issued any show cause letter, nor did the Company afforded him any opportunity to defend himself with regards to the allegations. No Domestic Inquiry ("DI") was held by the Company. The Claimant's last drawn salary was RM10,975.00 and the Claimant also received a monthly travelling allowances of RM200.00.

The Company's Case

[7] The Company on the other hand averred that, the restructuring exercise was carried out