Dismissal must be substantiated by just cause; mere afterthoughts by the employer do not justify termination.

[1] For deliberation and resolution before this Court is a reference made on 27 March 2018 by the Honourable Minister of Human Resources, Malaysia; exercising his ministerial authority under s 20 (3) of the Industrial Relations Act 1967 ("the Act"); which involves the dismissal from employment of one Uma Devi a/p Thomas ("the Claimant") by her erstwhile employer Perbadanan Pengerusan The Corinthian Management Corporation ("the Corporation") on 18 July 2017.

The Brief Facts

[2] The Corporation was established on 15 September 2008 under the Strata Titles Act 1985 to manage and maintain The Corinthian condominium as evidenced by a Certificate of Establishment [see p 1 of bundle marked 'A'].

[3] It is undisputed that the Claimant was employed by the Corporation as a 'Administration Assistant' with effect from 25 June 2015 on a monthly salary of RM2,000.00.

[4] On 18 July 2017 the C|aimant's service was terminated thus (exact copy follows):

[5] It was also undisputed that the Claimant's last drawn monthly salary was RM3,000.00.

[6] The Claimant now comes before this Court to aver that her dismissal from employment was without just cause or excuse and was contrary to the principles of equity, good conscience and natural justice. She prayed to be reinstated in her former position without loss of seniority, wages or benefits, monetary or otherwise, together with arrears of salary or alternatively any other remedy that this Court may deem fit in the circumstances.

[7] The Corporation, on the other hand, has denied the Claimant's allegations and contends instead that it was absolutely right in terminating the Claimant's services as it did.

The Issue

[8] The Courts mandate on receiving a reference under s 20(3) of the Act has been aptly articulated by The Right Honourable Tun Salleh Abas LP in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988] 1 MLJ 92 (SC) as follows:

"When the Industrial Court is dealing with a reference under s 20, the first thing that the Court will have to do is to ask itself a question [of] whether there was a dismissal and if so whether it was with or without just cause or excuse."

[Emphasis Added]

[9] That there was a termination of employment of the Claimant by the Corporation is a common position adopted by both parties. This disposes the initial task of this Court, which is to determine whether there was indeed a dismissal.

[10] The next function then of this Court is to verify the propriety of that termination, that is, was it for just cause or excuse. This entails a three-step process:

i) establishing the employer's reason for the dismissal;

ii) examining whether the reason has been sufficiently made out in the proceedings before the Court; and lastly

iii) concluding whether that reason constituted just cause or excuse for the dismissal.

[11] As there is no quarrel that there was an unequivocal dismissal of the Claimant by her employer and bearing in mind the factual matrix of this case, I take cognizance of the pronouncement of the late Mohd Azmi FCJ in the cases of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Anor, [1995] 2 MLJ 753 and Milan Auto Sdn Bhd v. Wong She Yen; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049 wherein His Late Lordship articulated the two-fold function of the Industrial Court under a s 20 reference. To paraphrase; it is first ~ to determine whether the alleged misconduct of the employee had been established; and second ~ whether that proven misconduct constitutes just cause or excuse for th