Back
2023 MarsdenLR 3000
INDUSTRIAL COURT KUALA LUMPUR
LOO SHUH SIA – Appellant
Versus
MDSA RESOURCES SDN BHD – Respondent
Award No: 2266 Of 2023 [Case No: 6(22)/4-40/20]
The dismissal of an employee for unprofessional conduct and insubordination is justified when the employer establishes just cause through credible evidence.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - The court evaluated the circumstances of the claimant's dismissal from the company, which was based on multiple instances of unprofessional conduct and insubordination, including failure to comply with management instructions and use of vulgar language towards a superior. (Paras 1, 17, 101)
(B) Burden of Proof - The employer must provide convincing evidence that the employee committed the alleged misconduct warranting dismissal, with the burden resting on the employer to establish just cause. (Paras 16, 20)
(C) Standard of Proof - The standard in dismissal cases is the balance of probabilities, not beyond reasonable doubt. (Paras 21)
Facts of the case:
The claimant was employed as a Senior Manager and was dismissed following several warnings regarding her performance and conduct, including a vulgar text message to the Group Managing Director. (Paras 4, 8, 101)
Findings of Court:
The court found that the company established just cause for dismissal based on the claimant's repeated unprofessional behavior and failure to adhere to management's expectations. (Paras 101, 104)
Issues: The court addressed whether the claimant's misconduct justified her dismissal and whether the company followed proper procedures. (Paras 17, 101)
Ratio Decidendi: The court held that the claimant's actions, particularly the use of vulgar language and failure to maintain professionalism, constituted just cause for termination, affirming the employer's right to dismiss based on established misconduct. (Paras 101, 104)
Result: Claimant's claim dismissed.
| Table of Content |
|---|
| 1. dismissal of employee and factual background. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. company's arguments regarding employee's performance. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 3. burden of proof in dismissal cases. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 4. importance of evidence in justifying dismissal. (Para 23 , 24 , 25 , 26) |
| 5. vagueness in allegations against employee. (Para 27 , 28 , 29 , 30) |
| 6. defective charges and their implications. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 7. employee's misconduct and its consequences. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43) |
| 8. continuing misconduct after warnings. (Para 44 , 45 , 46 , 47) |
| 9. insufficient evidence of double punishment. (Para 48 , 49 , 50 , 51) |
| 10. trust and communication breakdown. (Para 52 , 53 , 54 , 55) |
| 11. rudeness and its impact on employer-employee relationship. (Para 56 , 57 , 58 , 59) |
| 12. condonation and approval of workplace shift. (Para 60 , 61 , 62 , 63) |
| 13. evidence of approval for workplace relocation. (Para 64 , 65 , 66 , 67) |
| 14. insufficient evidence for approval claims. (Para 68 , 69 , 70 , 71) |
| 15. communication difficulties and professionalism. (Para 72 , 73 , 74 , 75) |
| 16. facial expressions and professionalism. (Para 76 , 77 , 78) |
| 17. external auditors issue not relevant to dismissal. (Para 79 , 80 , 81) |
| 18. employer's reliance on reasons for dismissal. (Para 82 , 83 , 84 , 85) |
| 19. use of profanity as misconduct. (Para 86 , 87 , 88 , 89) |
| 20. overall employee conduct and justification for dismissal. (Para 90 , 91 , 92 , 93 , 94 , 95 , 96 , 97 , 98 , 99) |
| 21. conclusion on dismissal justification. (Para 101 , 102) |
| 22. final judgment on claimant's case. (Para 103) |
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of Loo Shuh Sia (hereinafter referred to as "the Claimant") by MDSA Resources Sdn Bhd (hereinafter referred to as "the Company") on 17 September 2019.
[2] This Court considered the following cause papers and documents in handling down this Award namely:
(a) Statement of Case dated 4 March 2020;
(b) Statement in Reply dated 13 October 2020;
(c) Rejoinder dated 11 January 2021;
(d) Claimant's Witness Statement marked as CLWS;
(e) Company's witness Statement marked as COWS;
(f) Claimant's bundle of document marked as CLB 1;
(g) Claimant's Supplementary bundle of document marked as CLB 2;
(h) Company's bundle of document marked as COB 1;
(i) Company's Supplementary bundle of document marked as COB 2;
(j) Company's Supplementary bundle of document marked as COB 3; and
(k) Company's Supplementary bundle of document marked as COB 4.
Factual Matrix
[3] The Company together with the Hatten Asset Management Sdn Bhd is part of the Hatten Group which developed and manages, inter alia, shopping malls known as Dataran Pahlawan Melaka Megamall and Hatten Square and a hotel known as Hatten Hotel located in Melaka town.
[4] The Claimant was initially employed by Hatten Asset Management Sdn Bhd as a secretary vide letter dated 24 June 2009 with the salary of RM3,200.00 per month reporting only to the Managing Director ('subsequently known as the Group Managing Director- GMD'). Her salary was increased to RM3,500.00 when she was confirmed in her employment with effect from 1 September 2009. Through a corporate restructuring exercise, on 30 August 2016, the Claimant was transferred to the Company and continued to be in employment until her dismissal.
[5] From the year 2013 to 2018, the Claimant received several promotions with salary adjustments. In addition to that, the Claimant was presented with a 'Long Service Award' in recognition and appreciation of her 9 years of loyal and dedicated service to the Company.
[6] On 24 July 2019, the Claimant was issued a letter of warning due to her unsatisfactory work performance. On 31 July 2019, a second letter of warning was issued to the Claimant for showing lack of professionalism when responding to the GMD's instruction via WhatsApp with the word 'NOTED
