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2021 MarsdenLR 4048
INDUSTRIAL COURT KUALA LUMPUR
FAHMI SHAIRAZI SULAIMAN – Appellant
Versus
PETROLIAM NASIONAL BERHAD – Respondent
Award No: 1567 Of 2021 [Case No: 6(15)(6)/4-76/20]
Petitioner Advocates:Nur Shazwani Shahdan,Umi Farhanah Mohd Nasir ,Respondent Advocate: Maximilian Tai Kim Sen,Sandra Voon Wan Ting
Persistent tardiness and failure to comply with working hours is serious misconduct constituting just cause for dismissal under Section 20(3) of the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – The claimant was dismissed for tardiness and absenteeism. The Domestic Inquiry upheld the dismissal based on the admission of guilt by the claimant concerning misconduct. The Industrial Court assessed whether the dismissal was with just cause or excuse. (Paras 48, 49, 50, 120)
(B) Misconduct – Persistent tardiness and failing to adhere to working hours is considered serious misconduct and undermines the trust and responsibility an employee holds. (Paras 115, 116)
(C) Procedural fairness – The claimant asserted that he was pressured to plead guilty, however, this allegation lacked corroborative evidence and was dismissed by the Court. (Paras 111, 112)
Facts of the case: The claimant, employed since 2012, faced dismissal after a domestic inquiry for tardiness and working less than the required hours. He admitted guilt during the inquiry but later contended that he had been pressured into his plea. (Paras 2-4, 32)
Findings of Court: The Court found that the domestic inquiry was valid, and the employer had established the misconduct on a balance of probabilities. The claimant's claims of system errors and being unwell lacked sufficient evidence. (Paras 56, 115)
Issues: Whether the dismissal justified based on the alleged misconduct was established and if just cause existed for termination. (Paras 48, 120)
Ratio Decidendi: The court ruled that past conduct of tardiness warranted dismissal; the claimant's explanation did not hold merit as he failed to provide evidence. The company complied with procedural standards in their inquiry. (Paras 20, 120)
Result: Claimant's claim dismissed.
AWARDReihana Abd Razak :Reference[1] This is a reference by the Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Fahmi Shairazi Sulaiman ("the claimant") by Petroliam Nasional Berhad ("the company") on 29 April 2019.A. Brief Facts[2] The claimant commenced employment with the company on 3 September 2012 as an Executive at Strategy & Portfolio Department, Planning Division and had then been confirmed in his position in April 2013.[3] At the time of the dismissal, the claimant held the post of Executive Data Analyst, Group Technical Data in Project Delivery & Technology Division in the company and his last drawn salary was RM6,099.00.[4] The company issued a show cause letter dated 21 March 2019 to the claimant with three (3) allegations of tardiness and absenteeism.[5] The claimant vide letter dated 26 March 2019 denied all the allegations and gave his explanations about the allegations.[6] The company then issued a Notice of Domestic Inquiry requiring the claimant to attend a domestic inquiry on 11 April 2019 concerning two (2) charges of lateness and tardiness.[7] The claimant attended the domestic inquiry and pleaded guilty on both the charges.[8] Vide letter dated 29 April 2019, the company informed the claimant that he was found guilty on both charges and the company dismissed the claimant with immediate effect.B. Company's Pleaded Case[9] The company pleads that the claimant's position as an Executive Data Analyst, Group Technical Data in the Project Delivery & Technology Executive Data Analyst, Group Technical Data is an employee who have worked with the company for approximately six years and eight months entails a high degree of responsibility and trust.[10] The company pleads that at all material times it was an express and implied term of his contract of service with the company that the claimant would observe and comply with the PETRONAS Code of Conduct and Business Ethics (COBE) as well as comply with the company's circulars, directives, policies, processes, procedures, guidelines, internal rules and regulations as enforced by the company from time to time.[11] The company had on 21 March 2019 issued a Notice To Show Cause Letter (COB1 pp 45-50) to the claimant to answer three charges, the summary of which are as follows:
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"Charge No 1
Absent without leave and/or without prior approval from your superior or the company;Charge No 2Late to work (after 10.00 am) without prior approval from your superior and/ or the company; andCharge No 3Working less hours (less than 8 hours on site from Monday to Thursday and/or less than 7 hours on site on Friday) without prior approval from your superior or the company."
[12] The company asserts that the claimant vide letter dated 22 March 2018 responded to the Notice to Show Cause (COB-1 pp 51-60).
[13] In respect of Charge No 1 on the allegation of Absent without Leave, the claimant states that he was attending GTD OKR streamlining, PETRONAS Geo Sample, at Keramat KL, SKG 09 EP Data Management, PNB at Perdana Hotel, KL and P&I KPI setting, PETRONAS Geo Sample, at Keramat KL on 6 September 2018, 13 September 2018 and 29 January 2019 respectively.[14] On Charge No 2 on allegation of Late to Work (after 10.00 am), the claimant states that he was not feeling well on 20 September 2018, 8 October 2018, 9 January 2019, 11 January 2019 and 23 January 2019 while on 12 September 2018 and 12 November 2018 the claimant claims that the time track system failed to capture his First-in time correctly.[15] In respect of Charge No 3 on the allegation of Working less than 8 hours, the claimant admitted for not completing the eight hours and sought apologies from the company for the misconduct.[16] The company avers that it accepted the claimant's explanation for Charge No 1 but was not satisfied with the claimant's explanation to Charges No 2 and No 3.[17] The company then issued a Notice of Inquiry dated 4 April 2019 (COB-1 pp 61-67) t
