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2023 MarsdenLR 1906
INDUSTRIAL COURT KUALA LUMPUR
NABILLAH ZULKIFLY – Appellant
Versus
KOPERASI PEGAWAI-PEGAWAI MELAYU MALAYSIA BERHAD (MOCCIS) – Respondent
Award No: 2406 Of 2023 [Case No: 11(3)(15)(6)(14)/4-2488/20]
The dismissal of an employee must be supported by just cause established on the balance of probabilities; failure to do so results in wrongful dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed for alleged misconduct including loan irregularities - Court determined that the Company failed to prove misconduct on the balance of probabilities - Dismissal found to be without just cause. (Paras 30, 32)
(B) Burden of proof - The employer bears the burden to prove just cause for dismissal, which must be established on the balance of probabilities. (Paras 20, 22)
(C) Remedies - Court awarded compensation in lieu of reinstatement and back wages due to lack of just cause for dismissal. (Paras 34, 36)
Facts of the case:
The Claimant was employed as an Accountant and later as Deputy General Manager until her termination on 17 January 2020. The Company alleged misconduct related to loan applications and financial reporting.
Findings of Court:
The Court found that the Company did not establish the charges against the Claimant and that her dismissal was unjustified.
Issues: The primary issues included whether the dismissal was with just cause and the adequacy of the Company's evidence supporting the allegations.
Ratio Decidendi: The Court held that the Company's failure to provide sufficient evidence for the alleged misconduct led to the conclusion that the dismissal was without just cause.
Result: The Company is ordered to pay the Claimant RM324,000.00 as compensation.
| Table of Content |
|---|
| 1. reference and procedural background of the case. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. company's arguments regarding the claimant's misconduct. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. claimant's defense and arguments against termination. (Para 14 , 15 , 16 , 17) |
| 4. role of the industrial court and burden of proof. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 5. court's observations on evidence and findings. (Para 26 , 27 , 28 , 29 , 30 , 31) |
| 6. finding of dismissal without just cause. (Para 32) |
| 7. court's order for compensation and payment. (Para 33 , 34 , 35 , 36 , 37) |
[1] This is a reference dated 7 October 2020 by The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 [Act 177] in respect of the dismissal of NABILLAH BINTI ZULKIFLY ("the Claimant") by KOPERASI PEGAWAI-PEGAWAI MELAYU MALAYSIA BERHAD (MOCCIS) ("the Company") on 17 January 2020.
[2] This case was previously tried and concluded by the former Chairman of Court 15, Yang Arif Tuan Iznan Ishak who had since retired from the Industrial Court. This case has now been transferred to this Court and I have been requested to prepare and deliver the Award for this case.
[3] Subsection 23(6) of Act 177 provides that during the absence of or inability to act from illness or any other cause by the Chairman, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman. This Court, relying on subsection 23(6) of Act 177 and the principles laid down in the High Court case of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh and Anor ; ; [2011] 2 ILR 251, hands down the Award for this Case.
[4] In handing down this Award the following were considered by the Court:
(a) the record of proceedings;
(b) the notes of proceedings prepared by the former Chairman;
(c) Statement of Case dated 16 December 2020;
(d) Statement in Reply dated 9 April 2021;
(e) Rejoinder dated 31 May 2021;
(f) the Claimant's Bundles of Documents marked as CLB1 and CLB2;
(g) the Company's Bundles of Documents marked as COB1, COB2, COB3, COB4 and COB5;
(h) the Claimant's Written Submissions dated 3 March 2023;
(i) the Company's Written Submissions dated 3 March 2023;
(j) the Claimant's Submissions in Reply dated 21 March 2023; and
(k) the Company's Submissions in Reply dated 21 March 2023.
[5] The Company called three (3) witnesses ie Prof. Madya Mohd Salleh bin Mohamed ("COWS-1"), Gurdial Singh A/L Atma Singh ("COWS-2") and Lt Cdr (R) Ir Haji Mohd Ismail Bin Che Mat Din ("COWS-3"). Whilst the Claimant testified as the sole witness in this Case.
Background Facts
[6] Based on the pleadings and bundles of documents, this Court takes note of the following:
(a) the Claimant started her employment at the Company on 1 January 1991 as an Accountant. The Claimant's terms and conditions of employment were stipulated in the letter of offer as per pp 1 - 2 of CLB1;
(b) the Claimant was employed at the Company until her termination on 17 January 2020. During her tenure of employment at the Company, the Claimant had served as Account's Manager, Financial and Accounts Manager, Deputy General Manager;
(c) the Claimant was terminated on 17 January 2020 vide letter dated the same day which was signed by COWS-1, Executive Chairman on behalf of the Company. The said letter was again served on the Claimant vide letter dated 21 January 2020; and
(d) the Claimant's last drawn salary was RM6,750.00 per month.
The Company's Case
[7] The Company contends that the Claimant held the highest position and was the main person, in the Management of the Company. In her senior management position, the Claimant was accordingly reposed with a high level of trust and confidence by the Company.
[8] The Company further contends that the Claimant had signed a Letter of Undertaking in relation to her work as a Business and IT Clerk. As per the Letter of Undertaking, the Claimant had undertaken, inter alia, to be honest and no
