Dismissal for persistent tardiness and engaging in outside business during work hours constitutes just cause, while failure to declare a family member's employment was not proven.

AWARD

Paralingam J Doraisamy:

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Nurul Hanisah Binti Mohd Isa (hereinafter referred to as "the Claimant") by Continental Tyre PJ Malaysia Sdn Bhd (hereinafter referred to as "the Company") on 31 May 2021.

[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 31 May 2021.

I. Procedural History

[3] The Industrial Court received the letter pertaining to the DGIR's reference under s 20(3) of the Industrial Relations Act 1967 on 20 January 2022.

[4] The matter was fixed for mention on 7 March 2022, 18 April 2022, 2 June 2022, 24 August 2022, 6 March 2023, 5 May 2023, 16 August 2023, 11 September 2023 and 12 January 2024.

[5] The trial of the matter proceeded on 23 October 2024.

II. Parties' Position On The Merits

(a) The Claimant

[6] The Claimant was employed by the Company as an HR Operations Payroll Analyst by way of a Contract of Employment dated 31 July 2019. She effectively commenced her employment with the Company on 23 September 2019 at a monthly salary of RM4,250.00 and within 6 months, she was confirmed in her position by the Company with her salary remaining the same.

[7] The Claimant had worked for the Company for about 1 year and 7 months before being terminated from her employment on 31 May 2021. Prior to the termination, the Claimant was not informed of the 3 charges levelled against her in the Letter of Termination of Employment dated 31 May 2021 which were as follows:

i. Tardiness, ie consistently taking 2 hour lunch breaks without informing or getting approval from her Immediate Manager;

ii. Started an online business via social media and posted promotional materials which contravenes with cl 4 of the employment contract;

iii. Failure to declare family member joining the Company in another department.

[8] The Claimant was never warned that she was facing the possibility of termination and was instantly terminated verbally on 31 May 2021 effective 1 June 2021 whereby the Termination Letter was only given on 1 June 2021 and was immediately asked to return all of the Company's belongings.

[9] The Claimant finds the actions and decisions of the Company to be contrary to the principles of natural justice, equity, good conscience and an unfair labour practice which ought to be struck down.

(b) The Company

[10] The Claimant commenced her employment with the Company on 23 July 2019 as a Human Resource Operations Payroll Analyst. Her last drawn salary was RM4,250.00 per month.

[11] By virtue of cl 4.1 of the Contract of Employment dated 31 July 2019, the Claimant had to devote her full business time to the Company and the Continental Group.

[12] Pursuant to cl 4.2 of the Contract of Employment, the Claimant agreed that during the continuance of her employment with the Company, she would not on her own or in conjunction with or on behalf of any person, firm, corporation or organisation, carry on, be engaged or have an interest either directly or indirectly in any capacity in any trade, business, occupation, activity or employment which in the Company's opinion may hinder or otherwise interfere with the performance of the employee's duties or which may conflict with the Company's or Continental Group's interest and business or give assistance to any company engaged in similar trade or within areas that the employee is engaged within the Company or Continental Group.

[13] Pursuant to cl 7.1 of the Contract of Employment, the Claimant's working hours were based on the Company's regulations.

[14] Pursuant to cl 23.1 of the Contract of Employment, the Claimant agreed that the Company's rules, regulations and policies referred to in the contract as amended by the Company from time to time, shall apply to her in addition to the terms and conditions in the Contract of Employment.

[15] Accordi