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2024 MarsdenLR 3276
INDUSTRIAL COURT KUALA LUMPUR
GERALDINE S BIGAR – Appellant
Versus
COREVATE SYSTEM SDN BHD – Respondent
Award No: 1894 Of 2024 [Case No: 22/4-1546/22]
Dismissal without just cause is invalid; the employer must prove misconduct at the time of termination, and failure to communicate reasons renders the dismissal unjustified.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal without just cause - The Claimant was dismissed without a written notice or communicated reasons, leading to a claim for unfair dismissal - The court found the dismissal was orchestrated by the Managing Director due to personal vendetta stemming from marital issues. (Paras 30, 35, 47)
(B) Burden of Proof - The burden lies on the employer to prove misconduct for dismissal - The court highlighted the absence of communicated reasons or evidence of misconduct at the time of dismissal. (Paras 32, 33)
Facts of the case:
The Claimant was employed as IT Helpdesk Director & Human Resources Director and was dismissed on 28 February 2022 without just cause, allegedly due to personal vendetta from her ex-husband, the Managing Director. (Paras 10, 47)
Findings of Court:
The dismissal was unjustified as no misconduct was proven or communicated at the time of termination. (Paras 47, 48)
Issues: The court addressed whether the dismissal was with just cause and the actual reasons for the dismissal. (Paras 34)
Ratio Decidendi: The court ruled that the dismissal lacked just cause as it was based on unproven allegations and personal conflicts rather than legitimate workplace issues. (Paras 47)
Result: The court awarded compensation to the Claimant amounting to RM151,200.00. (Paras 53)
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Geraldine S Bigar (hereinafter referred to as "the Claimant") by Corevate System Sdn Bhd (hereinafter referred to as "the Company") on 28 February 2022.
[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 28 February 2022.
I. Procedural Background
[3] The Court received the letter pertaining to the DGIR reference under s 20(3) of the Industrial Relations Act 1967 on 10 November 2022.
[4] The matter was fixed for mention on 6 December 2022, 20 February 2023, 21 March 2023, 3 May 2023, 3 July 2023, 21 July 2023 and 23 November 2023.
[5] The trial proceeded on 23 July 2024, 24 July 2024 and concluded on 9 August 2024.
II. Parties' Position On The Merits
a. The Claimant
[6] The Claimant commenced employment with the Company in 2014 as "Sales Co-ordinator/IT Helpdesk Analyst" vide a Letter of Employment dated 1 September 2014. Her basic salary was RM3,500.00 per month. She was also placed under a 3 month probationary period.
[7] The Claimant was thereafter confirmed in her position as "Sales Co-ordinator/IT Helpdesk Analyst" vide Letter of Confirmation dated 1 December 2014.
[8] The Claimant continued to work in the Company for a period of 4 years and was promoted to the position of "IT Helpdesk Director & Human Resources Director" vide Letter of Promotion dated 31 October 2018. Her monthly salary was increased to RM6,500.00 plus RM500.00 miscellaneous allowances effective October 2018.
[9] In addition to her promotion, the Claimant was also appointed as a shareholder in the Company in 2020.
[10] The Claimant continued to work in the Company as IT Helpdesk Director & Human Resources Director until February 2022 when she was unceremoniously and unfairly dismissed by the Company without just cause or reason.
[11] Notwithstanding the Claimant's employment history with the Company, the Claimant married the Company's Managing Director, ie Dato' Chin Felix (COW-2) in the year 2004. They have 3 children together.
[12] Eventually both the Claimant and COW-1 encountered some issues in the marriage that led to the breakdown of their marriage. The Claimant contends that COW-1, in his personal capacity as the Managing Director of the Company, thereafter abused his authority to exact his personal vendetta against the Claimant by attempting to remove her from her employment in the Company.
[13] On 21 October 2018, COW-1 instructed one of the Company's employees named Mohammad Azraai, who is the IT Helpdesk Administrator at the material point in time, to take over the Claimant's work duties, without providing any due reason to do so. COW-1 also informed all other employees who are engaged in the Company WhatsApp group chat called "HR Corevate matters" that the Claimant is no longer working for the Company and that the Company will appoint a replacement to take over the Claimant's position. Thereafter, COW-1 forced the Claimant to leave the Company but the Claimant refused to do so and continued to work as per routine.
[14] Having failed to get the Claimant out of the Company, COW-1 once again instructed one of the Company's employees named Nursyakirin to take back the Claimant's company laptop and instructed Nursyakirin to request the Claimant to leave the Company's premises.
[15] COW-1 also instructed another employee of the Company, one Ms Apple Loh Kar Yee (CLW-1), to suspend the Claimant's official company email and redirect all official correspondences relating to the Company's matters to her and further forced CLW-1 to instruct the Claimant to leave the Company, threatening CLW-1 that she will receive the same fate should she fail to heed his instruction.
[16] The Claimant however remained firm on her ground that the Company did not have any just cause or reason to
