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2023 MarsdenLR 1037
INDUSTRIAL COURT KUALA LUMPUR
MOHAMAD SUFFIAN ISMAIL – Appellant
Versus
SEACERA GROUP BERHAD – Respondent
Award No: 2317 Of 2023 [Case No: 3/4-764/20]
Dismissal without just cause or excuse violates principles of natural justice; fair procedures are essential in domestic inquiries.
Headnote:(A) Industrial Relations Act 1967 - Subsection 20(3) - Dismissal of employee - Claimant dismissed without just cause or excuse after two Domestic Inquiries - Court examines fairness of procedures and burden of proof in DIs - Natural justice principles emphasized - Dismissal found unjustified, leading to compensation awarded. (Paras 11, 18, 56, 71)
(B) Domestic Inquiry - Requirement for fair procedures and natural justice - Court scrutinizes conduct of DIs, finding defects in process and lack of transparency - Court reiterates need for impartiality and proper conduct during inquiries. (Paras 20, 26, 35)
(C) Burden of Proof - Clarification of the burden of proof in employment disputes and the standard of proof required - Court highlights that the burden lies with the employer to prove dismissal was justified. (Paras 17, 18)
(D) Remedy - Court orders compensation in lieu of reinstatement due to the claimant's contributory misconduct - Apportionment of 25% for claimant's role in issues leading to dismissal. (Paras 56, 70, 71) (E) Final Award - Total compensation awarded to the claimant is RM368,190.74. (Para 72)
| Table of Content |
|---|
| 1. dismissal context and company structure. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. chairperson's role and court's procedural integrity. (Para 8 , 9 , 10 , 11 , 12 , 13) |
| 3. burden of proof in dismissal cases. (Para 14 , 15 , 16 , 17 , 18 , 19) |
| 4. domestic inquiry procedures and norms. (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 5. natural justice in domestic inquiries. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. assessment of dismissal charges and authority. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54) |
| 7. claimant dismissed without just cause. (Para 55) |
| 8. final award and compensation details. (Para 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71) |
Reference
[1] This is a reference dated 5 July 2020 made by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 (Act 177) arising out of the dismissal of Mohamad Suffian Bin Ismail ("the Claimant") by Seacera Group Berhad ("the Company") on 30 October 2019.
Brief Facts
[2] The case seems to be convoluted as it involves the relationship of a subsidiary company and the parent holding company. The Company is the parent holding company of several companies. This included Duta Skyline Sdn Bhd (DSSB), which became a subsidiary to the Company sometime in 2016.
[3] The seeming convolution continues with the fact that the Claimant had two roles in the Company and the subsidiary. The Claimant was initially appointed as a Senior Accounts Executive in Seacera Polyfilms Sdn Bhd on 1 November 2007. Then the Claimant was appointed as the Executive Director in Corporate Finance and Business Development of Seacera Polyfilms Sdn Bhd, which according to the Claimant is part of the group of companies under the holding company. The latter fact was not refuted by the Company only that the post was designated as Corporate Finance and Business Development Manager, in the pleadings. The Claimant was also one of the Board of Directors of DSSB.
[4] The Claimant was terminated effectively on 1 November 2019 via a letter dated 30 October 2019. The grounds of dismissal was not clearly spelt out but the termination letter did make reference to the findings of the two Domestic Inquiries ("DI"). The actual dismissal statement reads as follows:
"The charges levelled against you and proved against you at the inquiry being grave and serious, the punishment warranted is that of dismissal. In the circumstances, it has been decided to dismiss you from your service as an Executive Director. Accordingly, we are hereby dismissed you from service with effect from 1 November 2019.".
[5] The Claimant filed a representation to the Director General of Department of Industrial Relations which the Director General agreed on 5 July 2020 claiming that he was terminated without just cause or excuse.
[6] The Company is objecting and have filed the relevant pleadings in reply. The Company is represented by the Malaysian Employers Federation, whilst the Claimant is represented by legal counsel.
[7] The Court has gone through the evidence as given through testimony in Court and the documents and submission that have been filed. Those documents and submissions are listed for ease of reference as follows:
(i) Statement of Case dated 28 October 2020;
(ii) Company's Statement in Reply dated 30 November 2020;
(iii) Rejoinder dated 9 December 2020;
(iv) Claimant's Bundle of Documents 1 filed on 2 November 2020 marked as exhibit CLB-1;
(v) Claimant's Bundle of Documents 2 filed on 10 December 2020 marked as exhibit CLB-2;
(vi) Claimant's Bundle of Documents 3 filed on 7 April 2022 marked as exhibit CLB-3;
(vii) Claimant's Bundle of Documents 4 marked as exhibit CLB-4;
(viii) Claimant's Bundle of Documents 5 filed on 9 December 2022 marked as exhibit CLB-5;
(ix) SSM Corporate Information print out marked as exhibit CLB-6;
(x) SSM Maklumat Syarikat print out marked as exhibit CLB-7;
(xi) Company's Bundle of Documents f
