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2022 MarsdenLR 1873
INDUSTRIAL COURT KOTA KINABALU
ABDUL BAKAR SAMSUDIN – Appellant
Versus
MALAYSIA AIRPORTS HOLDINGS BERHAD – Respondent
Award No: 1804 Of 2022 [Case No: 22/4-1670/21]
Dismissal of an employee without just cause or a proper inquiry, especially when under investigation without charges, is unlawful under Industrial Relations law.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – Claimant dismissed for alleged misconduct, impacting Company’s reputation due to arrest by MACC. Dismissal deemed unlawful due to absence of just cause or excuse, lack of domestic inquiry, and retrospective application of disciplinary codes. (Paras 116, 122)
(B) Right to be heard – The absence of a domestic inquiry does not invalidate the dismissal, but procedural fairness requires the company to afford the employee the opportunity to defend against allegations. (Paras 48, 50)
(C) Presumption of innocence – Dismissal based on allegations without charges at the time. Court holds that the company acted against public policy by dismissing the Claimant who was merely under investigation. (Paras 54, 64, 76)
(D) Code of Ethics – The application of revised codes retroactively to punish conduct not regulated at the time is against natural justice and constitutional provisions. (Paras 78, 81, 90)
Facts of the case: Claimant dismissed by Company on 10 December 2018 for alleged misconduct concerning corruption without charges having been preferred against him, despite having had a long service record. The Claimant maintains dismissal was arbitrary. (Paras 2-9, 8, 37)
Findings of Court: Court finds the Claimant's dismissal was without just cause or excuse and contrary to principles of fairness, thereby granting compensation rather than reinstating him. (Paras 116, 130)
Issues: Main issues include the legality of dismissal in light of the Claimant’s lack of charge at dismissal, failure to hold a domestic inquiry, and the appropriateness of the applied Code of Ethics. (Paras 11, 30)
Ratio Decidendi: The Court determined that the dismissal lacked procedural fairness and a just cause, emphasizing the importance of showing a clear connection between misconduct and dismissal. (Paras 50, 116)
Result: Dismissal declared unlawful; compensation awarded amounting to RM271,270.98. (Paras 130)
AWARD
A. Reference
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of ABDUL BAKAR BIN SAMSUDIN (hereinafter referred to as "the Claimant") by MALAYSIA AIRPORTS HOLDINGS BERHAD (herein referred to as "the Company").
B. Preface
[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal by the Company on 10 December 2018.
[3] The Claimant was engaged by Department of Civil Aviation (DCA) Sabah as a Traffic Worker with effect from 7 August 1985. In 1992, the Department of Civil Aviation was separated into two entities, one of which was Malaysia Airports Berhad. Thereafter, on 1 October 1992, the Claimant was appointed as a General Assistant in Malaysia Airport Berhad
[4] The Claimant's last post in the Company before the termination of his service was as Admin / Operation Assistant. The Claimant's last drawn basic salary was RM4,759.14.
[5] The Claimant was dismissed after the Company found that the Claimant have caused the Company's image and reputation to be blemished due to his arrest by the MACC became news subject of the mass media with the Company's name being mentioned as Employer. The Claimant was also dismissed for breaching Code of Ethics and Conduct as based on his admission he had received RM500.00 from Diamoney Jewellary.
Further, the Company have lose trust and confidence in his credibility and integrity as an employee and the Company was unable to depose any further trust and confidence for the Claimant to serve the Company.
[6] The allegation of misconduct against the Claimant in respect of which he was asked to give his explanation and was subsequently he was terminated from his services is as per the Show Cause Letter dated 16 November 2018 as follows:
Akibat daripada penangkapan anda oleh pihak SPRM paga 6 Ogos 2018 atas kesalahan di bawah s 17(a) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694), anda didapati telah mencemarkan imej dan reputasi Syarikat kerana perihal penangkapan ini telah diberitakan oleh media massa secara meluas dengan menyebut nama Syarikat sebagai majikan.
Tindakan anda telah menyebabkan Syarikat hilang kepercayaan ke atas kredibiliti dan integriti anda sebagai seorang kakitangan.
Oleh yang demikian, anda dikehendaki memberi penjelasan mengapa Syarikat tidak boleh mengambil tindakan yang sewajarnya ke atas anda untuk memulih dan membersihkan kembali imej dan reputasi Syarikat atas kejadian ini.
[7] On 10 December 2018, the Company after receiving the explanation from the Claimant issued a letter of dismissal with immediate effect as follows:
Setelah meneliti dan mengambil kira hasil siasatan, Syarikat mendapati bahawa anda telah mencemarkan imej dan reputasi Syarikat kerana perihal penahanan anda oleh pihak SPRM atas kesalahan di bawah s 17(a) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 (Akta 694), telah diberitakan oleh media massa secara meluas dengan menyebut nama Syarikat sebagai majikan.
Anda juga mengaku menerima wang berjumlah RM500.00 daripada Diamoney Jewellery Holdings Sdn Bhd dan telah melanggar MAHB: CODE OF ETHICS AND CONDUCT.
Tindakan anda telah menyebabkan pihak Syarikat hilang kepercayaan ke atas kredibiliti dan integriti anda sebagai seorang kakitangan untuk berkhidmat dengan pihak Syarikat. Atas dasar tersebut, pihak Syarikat dengan ini berkeputusan untuk mengenakan tindakan PEMBUANGAN KERJA terhadap anda berkuatkuasa serta-merta.
[8] The Claimant contended that he was unlawfully terminated and that his dismissal by the Company was without just cause or excuse. He also stated that he was not given the opportunity to be heard in a Domestic Inquiry before the decision was made to terminate his service. He therefore seeks to be reinstated to his former position and/or any other alternate relief as this Court deems fit and proper to make.
[9] The Company however states that the termination of the Cl
