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2025 MarsdenLR 107
INDUSTRIAL COURT KOTA KINABALU
SYLVIA BENJAMIN – Appellant
Versus
CELCOM MOBILE SDN BHD – Respondent
Award No: 387 of 2025 [Case No: 17/4-95/22]
In dismissal cases, the employer bears the burden to prove just cause, with procedural fairness essential; failure to conduct a domestic inquiry renders termination unjust.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Key findings include the employee's acknowledgment of misconduct during employment, specifically unauthorized account registrations and terminations without customer presence. The court highlighted that the company failed to conduct a proper domestic inquiry or issue a show cause letter prior to dismissal. The court found insufficient basis for summary dismissal and ruled that the company did not have just cause for dismissal. (Paras [12], [31], [53], [65])
(B) Burden of proof - The court reaffirmed that the burden of proof in dismissal cases lies with the employer to demonstrate just cause for termination. The employer's failure to provide evidence for the established misconduct led to the conclusion that the dismissal was without just cause or excuse. (Paras [15], [19], [48])
(C) Procedural fairness and natural justice - The absence of a domestic inquiry or show cause letter was deemed fatal to the company's case, impacting the legality of the dismissal. The court emphasized adherence to fair procedural practices. (Paras [31], [32])
Facts of the case:
The claimant was a retail associate who was dismissed on the grounds of serious misconduct involving processing customer registrations without their physical presence. The company claimed serious infractions, leading to immediate dismissal without substantial procedural safeguards. (Paras [3], [5], [8])
Findings of Court:
The Court ruled the dismissal was unjustified; thus, the claimant was awarded compensation, including back wages and a monetary award totaling RM128,040.00. The misconduct determined did not warrant immediate dismissal. (Paras [66], [74])
Issues: The main issues included whether the claimant's dismissal was lawful given the absence of a domestic inquiry and whether the alleged misconduct constituted just cause for dismissal. (Paras [20], [21])
Ratio Decidendi: The court determined that while misconduct was established, the dismissal was disproportionate to the nature of misconduct, emphasizing that not all misconduct warrants termination. The employer's failure to follow due process undermined its case. (Paras [58], [60])
Result: The court ruled that the dismissal was without just cause or excuse and awarded compensation to the claimant. (Paras [67], [74])
| Table of Content |
|---|
| 1. facts establishing employment and nature of work. (Para 1 , 2 , 3 , 4) |
| 2. claims of misconduct by the claimant. (Para 5 , 8 , 27) |
| 3. law and burden of proof in dismissals. (Para 12 , 13 , 14 , 15 , 17) |
| 4. need for due process in dismissal cases. (Para 31 , 32 , 56 , 59) |
| 5. conclusion on dismissal and compensation. (Para 66 , 68 , 74) |
A. Reference
[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of Sylvia Benjamin (hereinafter referred to as "the Claimant") by Celcom Mobile Sdn Bhd (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 with effect from 23 June 2021.
[3] The Claimant commenced her employment effective 19 June 2000 with the Company under a letter of appointment dated 13 June 2000 as a Kerani Am. The Claimant's last post in the Company was as a Retail Associate at Bluecube, 1Borneo Kota Kinabalu. At the time of dismissal, the Claimant's last drawn salary was RM3,880.00, including monthly fixed allowances.
[4] At all material times, the Claimant's duties and responsibilities as a Retail Associate were as follows:
(a) Conducting product demonstrations. Execution of retail operations activities and application of effective sales techniques to understand customer needs and promote relevant products and services ie sales, servicing and administration at outlets and comply with the guidelines, policies, procedures and Service Level Agreements (SLAs).
(b) Create conversations and engage with the customers to convert into sales opportunities (postpaid/prepaid registrations, devices, VAS and accessories, etc).
(c) Result-driven and stay up-to-date with the product features and maintain retail outlet visual appearance in high standards.
(d) Professionally and accurately handle customers' enquiries and requests by applying good knowledge of modern tools. Policies and processes. Execute and adhere to retail outlet and service impression as well as service mannerism guidelines as per company's direction.
(e) Achieve desirable Net Promoter Score (NPS) by providing exceptional service to the customers. Providing customers with advisory. Product ownership experience and good after sales support.
(f) Resolve and update customers' enquiries and complaints and the service is quick and efficient to ensure maximum customer satisfaction by taking ownership of customers' issues.
(g) Involve in special events or outside sales and servicing initiatives ie device launching as set by the management and execute departmental improvement initiatives at the outlet level.
(h) Provide continuous and positive feedback to Retail Manager/ Retail Senior Manager on operations and other relevant matters for improvement purposes.
(i) To maintain accuracy of transactions, inquiries and complaints to meet required Key Performance Indicators (KPIs) thereby increasing customers' trust and satisfaction.
(j) Execute departmental improvement initiatives at the outlet level and perform any other duties as directed by the superior.
[5] This present case relates specifically to the alleged misconduct by the Claimant during her employment as a Retail Associate of the Company. The allegations of misconduct against the Claimant are as follows:
1. Between 11 October 2020 and 13 January 2021, the Claimant had processed 19 Postpaid registrations via Celcom Pulse Optical Character Recognition ("OCR") without the customers' presence by using MyKad images captured from photocopied paper and/ or images displayed on another device or smartphone screen.
2. Between 11 October 2020 and 13 January 2021, the Claimant had registered the same customers multiple times using the same MyKad images captured via Celcom Pulse OCR for the Family Line plans. Some of the names and images were used again in the following month.
3. It was r
