Dismissal for sleeping during work hours deemed unjustified due to lack of evidence and consideration of employee's medical condition and past performance.

AWARD

Jeyaseelen T Anthony:

Reference

[1] This is a reference made on 5 December 2022 by the Director-General of Industrial Relations Department to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ('the Act') arising out of the dismissal of Mohd Fauzi Bin Mohd Shariff (hereinafter referred to as 'the Claimant') by Bank Islam Malaysia Berhad (hereinafter referred to as 'the Bank'). The Director-General's reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Bank on 17 January 2022.

Brief Background Facts Of The Case

[2] The Claimant's pleaded case, as contained in his Statement of Case dated 10 February 2023, was that he joined the Bank on 6 October 2010 as a Manager in its Bayan Baru branch in Penang. The Claimant was transferred to the Bank's Alor Setar branch in 2020 as a Branch Manager.

[3] The Claimant pleaded that his last drawn salary in his position as Branch Manager was RM15,052.00 with RM862.55 as contractual allowance. Via letter dated 3 November 2021, the Claimant pleaded that he was asked to show cause for two acts of alleged misconduct namely, for failing to ensure compliance with the Bank's Covid-19 Standard Operating Procedures and for sleeping in his office room on eleven (11) occasions between 22 October 2020 and 14 April 2021. The Claimant replied to the said show cause letter vide letter dated 15 November 2021 and denied that he was sleeping and explained that his sitting position may be seen as if he is sleeping because he was browsing through his mobile phone and further asserted that he suffers from a medical condition called micro-sleep which causes him to sleep when he is in an idle position.

[4] The Claimant was then issued a Notice of Domestic Inquiry dated 30 November 2021 instructing the Claimant to attend the inquiry on 21 December 2021 for the charge of sleeping only and he was also suspended from work until further notice. The Claimant pleaded that he was issued with a warning letter in respect of the charge of failing to ensure compliance with the Bank's Covid-19 Standard Operating Procedures.

[5] Further, the Claimant pleaded and averred that the charge of sleeping was premised on sleeping incidences that occurred more than a year and/or more than half a year before the disciplinary proceedings were initiated in November 2021, and as such the Claimant contended that the said charge was an afterthought after the Bank having realized that the charge of failing to ensure compliance with the Banks Covid-19 Standard Operating Procedures could not be sustained.

[6] Regarding the domestic inquiry, the Claimant averred that the Bank's witnesses were all biased and had personal grudges against him. The Claimant then pleaded that the Bank vide letter dated 17 January 2022 found the Claimant guilty and dismissed him with immediate effect.

[7] On his dismissal by the Bank, the Claimant contends that his dismissal was done in bad faith and hence was without just cause or excuse and therefore pleaded for reinstatement and the other usual reliefs.

[8] The Bank on the other hand, in their Statement of Reply dated 21 March 2023 pleaded that the Claimant's dismissal was with just cause and excuse. They pleaded that the Claimant's basic salary of RM14,224.00 with a Branch Manager allowance of RM800.00 per month.

[9] The