The dismissal of an employee during probation can be justified if proven misconduct exists, and the standard of proof is on the balance of probabilities.

Rajeswari Karupiah:

Reference

[1] This is an order of reference dated 7 May 2019 by the Honourable Minister of Human Resources, Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 ("the Act") for an award in respect of a dispute arising out of the claim of unjust dismissal by Tan Cheng Leng ("the Claimant") against his employer, Newaction Marketing Sdn Bhd ("the Company) on 24 January 2019.

[2] The Claimant was employed as an Accounts Manager by the Company with effect from 20 August 2018.?

[3] The Claimant was dismissed from the Company by a letter dated 22 January 2019, in which, the Company had found the Claimant guilty of committing the following misconduct:

1) Contribute EPF of RM591.00 to a person who is not an employee of Wah Kor Coffee Corner Sdn Bhd (TAN SWEE LING, NRIC No 941203-10-5836) for the month of November 2018 and December 2018; and

2) Recorded wrong information by intention to mislead management on payment of Wah Kor Coffee Sdn Bhd to supplier (Chop Chang Jiang Trading Sdn Bhd.)

a) Invoices from Chop Chang Jiang Trading Sdn Bhd was recorded by the Claimant with higher amount by RM591.00 by intention (Inv: 115123, Inv: 119272, Inv: 119418, Inv: 120368)

b) Cheque No: RHB002443 was issued at RM1.030.50 to Chop Chang Jiang Trading Sdn Bhd but recorded in accounting system at RM1,621.50, and the difference of RM591.00 being used as contribution of EPF to TAN SWEE LING, NRIC No 941203-10-5836.

[4] At the time of his dismissal, the Claimant had served the Company for five (5) months and remained as a probationer.

[5] Prior to the dismissal, the Company had issued a Show Cause letter dated 11 July 2019 (pp 11-12, COB) setting out the same charges in para 2 above.

[6] The Claimant had replied the Show Cause letter which is found at p 13 COB. The Claimant's reply was unduly brief. In it, the Claimant had denied knowledge of the incident. At the same time, the Claimant proposed that the error be duly handled with EPF vide a request for a refund.

[7] Having found the Claimant's Show Cause reply unsatisfactory, the Company proceeded with the termination of the Claimant's service.

[8] Not being satisfied with the Company's decision, the Claimant has filed a representation under s 20 of the Industrial Relations Act 1967 ("the Act") that his dismissal was without just cause or excuse and that he ought to be reinstated to his former position.

The Law

[9] In Goon Kwee Phoy v. J & P Coats (M) Bhd, 1981 MarsdenLR 117 Raja Azlan Shah CJ (Malaya) as his lordship then was at p 136, laid down the following principle:

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

[10] The Federal Court in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, 1995 MarsdenLR 1088 , succinctly stated the duties of the Industrial Court when dealing with a reference under s 20 of the Industrial Relations Act 1967 , which is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal of the workman in question.

[11] Similarly, the Supreme Court in the case of Milan Auto Sdn Bhd v. Wong Seh Yen , 1995 MarsdenLR 293 has at p 455; [1996] 1 AMR 049 stated as follows:

"...the f