Facts of the Case

Claimant commenced employment with the Respondent as an Airport Operation Clerk with effect from 29.09.1992. At the time of Claimant's dismissal on 13.06.2003, his last drawn salary was RM3,994.61 which included his basic salary of RM1,610.00 and other shift, overtime and travelling allowances amounting to RM2,384.61.

On 18.03.2003, the Respondent informed that eleven pieces of F1 tickets had been lost and the customer, Destination East Sdn Bhd. owner of the said tickets had lodged a police report. The Respondent had then instructed Mr. Robert Mohan to conduct an internal investigation. The Claimant was one of the employees investigated; he had duly put up a report of his duties for the particular day and submitted to Mr. Robert Mohan. According to the Claimant, his duty was confined to filling in the Customs declaration form with particulars as per the invoice. After obtaining the registration number from the Customs through the computer system, the said form would then be handed over to the operation department. On 23.05.2003, Claimant was detained and remanded by the police for four days for the investigation into this same incident and he was released on 27.05.2003 without being charged with a charge.

On 5.06.2003 Claimant was issued with a notice of domestic inquiry (D.I.) informing that a D.I. was scheduled on 12.06.2003 at 9.00 a.m. at the meeting room of the Respondent's headquarters for the Claimant to answer the charge which states that between 14.03.2003 and 18.03.2003, the Claimant had collaborated with Operations Assistant, Cik Asmah bte Mohamed Jali to deceive TNT's customer, Destination East Sdn Bhd, Suite 3B-11-5, Plaza Central, Jalan Stesen Sentul 5, Kuala Lumpur with regard to C/N 957014298 which contained 31 pieces of F1 tickets that the consignment had custom duties amounting to RM8,653.61 which was in fact non-dutiable with the interest to obtain personal gains. Claimant had duly attended the D.I. and denied the allegation of charge above and the loss of the F1 tickets but he declined to give any evidence. His reason was as per his letter dated 12.06.2003 that the matter had been brought to the police for prosecution and it would therefore be proper for the matter to be adjudicated by the Court. D.I. was proceeded on and Claimant was found guilty of the charges leveled against him. On 13.06.2003, he was dismissed from his service with immediate effect. Claimant contended that his dismissal was without just cause or excuse and prayed for reinstatement.

The Issue

The sole issue before this Court is whether the Claimant's dismissal which is an undisputed fact, was with or without just cause or excuse.

The Law

In Goon Kwee Phoy v. J & P Coats (M) Bhd., the Federal Court had laid down the role and duty of the Industrial Court in determining whether the dismissal of a workman by his employer was with or without just cause or excuse in the following words:-

"... If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it."

It is trite for dismissal cases that the burden of proof shall lie on the employer to prove with cogent and convincing evidence that the dismissal was justified on a standard of a balance of probabilities; see Goon Kwee Phoy (supra) and Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314.

Evaluation & Findings

In the Respondent's letter of termination of employment dated 13.06.2003 vide COB p. 23 issued to the Claimant terminating his service with immediate effect, the sole reason for Claimant