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2024 MarsdenLR 1549
INDUSTRIAL COURT SARAWAK
SIM WEI MIN – Appellant
Versus
CAHYA MATA SARAWAK MANAGEMENT SERVICES SDN BHD – Respondent
Award No: 1028 Of 2024 [Case No: 8/4-509/23]
The employer must prove just cause for dismissal, and failure to comply with established procurement policies constitutes serious misconduct justifying termination.
Headnote:(A) Industrial Relations Act 1967 [Act 177] – Section 20 – Dismissal of employee – The Industrial Court's role is to determine if the misconduct alleged by the employer is established and if it constitutes just cause for dismissal – The employer bears the burden of proof to show just cause for dismissal. (Paras 12, 15, 18, 19)
(B) Misconduct – The Claimant was dismissed for procurement irregularities – The Court found that the Claimant failed to comply with the Company's Procurement Policies & Procedures Manual 2012, which constitutes serious misconduct. (Paras 48, 65)
(C) Burden of Proof – The employer must provide convincing evidence of the alleged misconduct – The Court emphasized that the absence of a domestic inquiry does not preclude the Industrial Court from evaluating the evidence afresh. (Paras 21, 22)
Facts of the case: The Claimant was dismissed from his position as Senior General Manager for alleged procurement irregularities, including transactions with unregistered vendors. The Company placed him on Garden Leave during investigations but did not conduct a domestic inquiry before termination. (Paras 4, 9, 21)
Findings of Court: The Court found that the Claimant's actions constituted serious misconduct due to non-compliance with procurement policies, justifying the dismissal. (Paras 48, 70)
Issues: Whether the Claimant's dismissal was with just cause or excuse, and whether the Company followed proper procedures in the dismissal process. (Paras 12, 59)
Ratio Decidendi: The Court ruled that the Claimant's failure to comply with the Company's procurement policies justified the dismissal, and the employer had acted reasonably in believing the misconduct occurred. (Paras 52, 70)
Result: The Claimant's case is dismissed.
AWARD
Reference
[1] This is an order of reference dated 21 February 2023 by the Director General of the Industrial Relations Department pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the alleged dismissal of Sim Wei Min (the Claimant) by Cahya Mata Sarawak Management Services Sdn Bhd (the Respondent) on 23 June 2022.
Brief Facts
[2] The Company is Cahya Mata Sarawak Management Services Sdn Bhd (now known as Cahya Mata Professionals Sdn Bhd), a subsidiary of the Cahya Mata Group. The Company provides management services, including procurement and human resources, to the whole Cahya Mata Group
[3] The Claimant commenced his employment with the Cahya Mata Sarawak Group of Companies on 1 March 2001 as a Contract Services/Procurement Executive in Cahya Mata Sarawak Berhad.
[4] At the time of his dismissal from the Company on 23 June 2022, the Claimant was a Senior General Manager, Group Procurement of the Company, with a last-drawn monthly salary of RM28,388.00.
[5] On 9 December 2021, the Company found some irregularities with respect to the Company's procurement processes, and the Company issued a letter to place the Claimant on Garden Leave with full pay to facilitate investigations.
[6] On 9 March 2022, the Company issued the first Notice to Show Cause to the Claimant. The Claimant responded to the First Show Cause Notice by his letter dated 25 March 2022, but the Company did not take any action against the Claimant concerning the allegations raised in the first notice.
[7] On 23 May 2022, the Company issued a second Notice to Show Cause to the Claimant in respect of irregularities in the transactions with two companies known as Amble Best Sdn Bhd (ABSB) and Jaya Sukses Industries Sdn Bhd (JSISB).
[8] On 30 May 2022, the Claimant responded to the Second Show Cause Notice.
[9] The Company found the Claimant's explanation to the second show cause notice unacceptable, and the Company issued a Letter of Termination dated 23 June 2022 to dismiss the Claimant.
[10] On 4 July 2022, the Claimant appealed to the Company's decision but the Company maintained its decision to dismiss the Claimant.
[11] Dissatisfied with the Company's decision, the Claimant commenced this action.
The Law
Role And Function Of The Industrial Court
[12] The role of the Industrial Court under s 20 of the Industrial Relations Act 1967 [Act 177] is succinctly explained in the case Milan Auto Sdn Bhd v. Wong Seh Yen , . His Lordship Justice Mohd Azmi bin Kamaruddin FCJ, delivering the judgment of the Federal Court, needed to state the following:
"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s 20 is two-fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal. Failure to determine these issues on the merits would be a jurisdictional error...
[13] The above principle was further reiterated by the Court of Appeal in the case of K A Sanduran Nehru Ratnam v. I-Berhad , where His Lordship Justice Mohd Ghazali Yusoff JCA outlined the function of the Industrial Court:
"[21] The learned judge of the High Court held that the Industrial Court had adopted and applied a wrong standard of proof in holding that the respondent has failed to prove dishonest intention and further stating that the respondent has not been able to discharge their evidential burden in failing to prove every element of the charge. He went on to say that the function of the Industrial Court is best described by the Federal Court in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd and Another Appeal, [1995] 2 MLJ 753 where in delivering the judgment of the Court Mohd Azmi FCJ said (at p 352):
On the authorities, we were of the view that the main and only functio
