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2023 MarsdenLR 2827
INDUSTRIAL COURT KUALA LUMPUR
TAN CHENG LENG – Appellant
Versus
EPSILON MANAGEMENT SDN BHD – Respondent
Award No: 2398 Of 2023 [Case No: 11(20)/4-630/22]
The dismissal of an employee during probation must be with just cause; falsification of qualifications justifies termination.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed during probation period - Court finds dismissal was with just cause due to false representation and lack of qualifications - Burden of proof lies with employer to show just cause for dismissal - Claimant's case dismissed. (Paras 1, 11, 18, 19)
(B) Dismissal - Just cause - Employee on probation enjoys same rights as confirmed employee; dismissal without just cause is subject to judicial review. (Paras 16, 17)
Facts of the case:
The Claimant was dismissed by the Company without a domestic inquiry, claiming dishonesty and false representation in his qualifications. The Claimant sought reinstatement and compensation. (Paras 6, 7)
Findings of Court:
The Court found the Claimant had falsified his qualifications and employment history, justifying the dismissal. (Paras 18, 19)
Issues: Whether the dismissal was with just cause and if the Claimant's qualifications were misrepresented. (Paras 11, 12)
Ratio Decidendi: The court ruled that the Claimant's falsification of qualifications and employment history constituted just cause for dismissal, reaffirming that the burden of proof lies with the employer. (Paras 14, 18)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. reference and jurisdiction of the industrial court (Para 1 , 2 , 3) |
| 2. considerations for the award (Para 4 , 5) |
| 3. claimant's allegations and remedies sought (Para 6 , 7 , 8) |
| 4. company's defense and claims against the claimant (Para 9 , 10) |
| 5. burden of proof in dismissal cases (Para 11 , 12 , 13 , 14) |
| 6. court's analysis of evidence and standards (Para 15 , 16 , 17) |
| 7. court's findings on claimant's dishonesty (Para 18) |
Reference
[1] This is a reference from the Director General for Industrial Relations to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 [Act 177] in respect of the dismissal of Tan Cheng Leng ("the Claimant") by Epsilon Management Sdn Bhd ("the Company") on 8 October 2021.
[2] This case was previously tried and concluded by the former Chairman of Court 20, Yang Arif Puan Rajeswari Karupiah 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 2 June 2022;
(d) Statement in Reply dated 1 July 2022;
(e) Rejoinder dated 5 July 2022;
(f) the Claimant's Bundles of Documents marked as CLB1, CLB2, CLB3, CLB4 and CLB5;
(g) the Company's Bundles of Documents marked as COB1, COB2, COB3 and COB4;
(h) the Claimant's Written Submission dated 18 July 2023;
(i) the Company's Written Submission dated 8 September 2023; and
(j) the Claimant's Written Submission in Reply dated 8 September 2023.
[5] The Company called two (2) witnesses ie Cheng Chiah ("COWS1") and Ching Jing Yu ("COWS2"). Whilst the Claimant testified as the sole witness in this Case.
The Claimant's Case
[6] The Claimant made the following averments:
(i) the Company had conducted three interviews ie on 5 th May 2021, 25 June 2021 and 8 July 2021 and proceeded to give an offer letter on 15 July 2021 for the position of an accountant to the Claimant with a monthly salary of RM6,500.00;
(ii) prior to the end of the six (6) months' probation period, the Company issued a termination letter terminating the Claimant's employment; and
(iii) the termination was done without a domestic inquiry being undertaken.
[7] The Claimant claims that he was dismissed without just cause and excuse.
Remedies Sought By The Claimant
[8] The Claimant prays that this Court makes such order that he be reinstated to his former position and / or with full back wages and benefits due to him from the date of dismissal and / or any compensation which this Court deems fit and reasonable.
The Company's Case
[9] The Company does not dispute that the Claimant had been offered the position of an accountant with Company following the three interviews conducted. However, the Company avers that the Claimant's dismissal was with just cause or excuse as during his probationary period the Claimant had been dishonest, provide false representation in his curriculum vitae and lacked the essential qualifications.
[10] The Company also avers as follows:
(a) the Claimant's version of the letter of appointment tendered in Court has been altered and is dissimilar to the duly executed and returned copy which is kept in the Company's record;
(b) clause 4 of the letter of appointment dated 30 August 2021 had been altered ie the termination notice period for probation employee had been unil
