The dismissal of an employee for misconduct must follow proper inquiry and adhere to principles of natural justice, with the burden of proof on the employer to establish just cause.

The matter was referred to the Industrial Court through a reference ordered by the Honourable Minister of Human Resources dated 15 March 2006 and duly received by the Court on 7 June 2006.

The trial was started by Y.A. Tuan Chew Soo Ho on 9 October 2008 and continued on 29 May 2009 before he was elevated as a Judicial Commissioner. Both parties consented when I continued the hearing with the testimony of the Claimant on 5 October 2010.

The Claimant contends that his dismissal was without just cause or excuse and/or in breach of the principles of natural justice and/or an unfair labour practice and/or unlawful and/or a colourable exercise of the Company and/or an act of mala fide by the Companys Management.

The Company avers that the Claimant was found guilty of the misconduct after domestic inquiry was conducted. The Company submits that the dismissal was with just cause or excuse.

Brief Facts

1. The Claimant commenced employment with the Company on 6.8.1990 as Plant Operator Grade V Cat. 3 at the Companys Milkpowder Manufacturing Plant.

2. The Claimant was confirmed in his position effective 6.2.1991.

3. After three (3) years with the Company, the Claimant was promoted twice to the position of Operator Loji Gred 4 in Category 4 and 5 in the Cereal Department respectively.

4. The Claimant also received numerous increments on his salary throughout his service and his last drawn salary was RM1635.

5.Vide a letter dated 18.9.2003 the Company accused the Claimant of misconduct (sleeping while on duty). The Claimant was requested to furnish his explanation in writing on the alleged misconduct.

6.Vide a letter dated 22.9.2003 the Claimant replied to the show cause letter whereby he denied that he had committed any misconduct.

7. The Company informed the Claimant vide letter dated 24.9.2003 that they were not satisfied with the explanation given by the Claimant in his reply. The letter also requested the Claimant to attend a domestic inquiry (DI) on 30.9.2003 to answer the charge preferred against him.

8. The Claimant attended the Domestic Inquiry sessions and pleaded not guilty to the charge preferred against him.

The charge reads as follows:

"That you, on 18 September 2003, at approximately 4.35 am, during your working hours, were found sleeping in the Control Room of the Milling Plant by the Production Manager, Cereal."

9. Subsequently vide a letter dated 1.10.2003 the Claimant was informed that the Company found him guilty of the charge preferred against him and dismissed him with immediate effect.

The Law

The function of the Industrial Court is clearly enunciated in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd. where Raja Azlan Shah CJ (Malaya) (as HRH then was) speaking for the Federal Court ruled at pg. 136,

"Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him the duty of the Industrial Court will be to inquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the Court is the reason advanced by it and that Court or the High Court cannot go into another reason not relied on by the employer or find one for it".

The role of the Industrial Court is succinctly explained in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen (1995) 4 CLJ 449 at pg. 445, where the Federal Court decided as follows:

"As pointed out by this Court recently in Hong Leong Assurance Sdn. Bhd. v. Wong Yuen Hock (1995) 3 CLJ 344, the function of the Industrial Court in dismissal cases on a refer