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2023 MarsdenLR 2292
INDUSTRIAL COURT KUALA LUMPUR
MOHD AZLA LAZIM – Appellant
Versus
WIN WIN FOOD INDUSTRIES SDN BHD – Respondent
Award No: 2318 Of 2023 [Case No: 6(16)/4-1030/21]
The dismissal of an employee must be substantiated by proven misconduct; failure to conduct a domestic inquiry does not invalidate the dismissal if the court can reassess the case.
Headnote:(A) Industrial Relations Act 1967 - Section 7 - Dismissal of employee - Claimant dismissed for alleged misconduct including persuading foreign workers to join union without employer's consent, collecting money from workers unlawfully, and breaching movement control order - No domestic inquiry conducted prior to dismissal - Court found that allegations were not proven on balance of probabilities and that the dismissal was with just cause. (Paras 22, 27, 78, 111)
(B) Natural Justice - Requirement of domestic inquiry - While failure to conduct a domestic inquiry may constitute a breach of natural justice, such breach does not necessarily invalidate the dismissal if the Industrial Court can assess the case de novo. (Paras 110, 111)
| Table of Content |
|---|
| 1. reference and procedural background of the case (Para 1 , 2 , 3 , 4 , 5) |
| 2. details of termination letters and claims (Para 6 , 7 , 8 , 9) |
| 3. claimant's arguments regarding termination (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 4. company's defense and justifications (Para 18 , 19 , 20 , 21) |
| 5. legal standards and burden of proof (Para 22 , 23 , 24 , 25 , 26) |
| 6. evaluation of evidence from the company's witnesses (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 7. evidence from the claimant's witnesses (Para 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45) |
| 8. claimant's evidence and cross-examination (Para 46 , 47 , 48 , 49 , 50 , 51) |
| 9. further examination of claimant's case (Para 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61) |
| 10. evidence from halim bin tumin, claimant's witness (Para 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71) |
| 11. testimony of mat kar bin siwang, union president (Para 72 , 73 , 74 , 75) |
| 12. court's findings on allegations and defenses (Para 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90) |
| 13. conclusion on misconduct and natural justice (Para 91 , 92 , 93 , 94 , 95 , 96 , 97 , 98 , 99 , 100 , 101 , 102 , 103 , 104 , 105 , 106 , 107 , 108 , 109 , 110) |
| 14. final judgment on dismissal (Para 111) |
[1] This is a reference by the Minister of Human Resources made under s 20(3) of the Industrial Relation Act 1967 (Act 177) ("the Act") arising out of the dismissal of Mohd Azla Bin Lazim ('the Claimant') by Win Win Food Industries Sdn Bhd ("the Company") on 1 September 2020.
Introduction
[2] At the outset, parties agreed that this case be fixed to be heard together with another case no: 16/4 - 1607/21 (Halim Bin Tumin) against the same Company as the fact leading to the dismissal of the Claimant are similar to Halim Bin Tumin's and their letter of terminations were dated the same by the Company in notifying them of their termination. Consequent to the dismissal that stems from the similar events, parties had at the outset agreed and appraised the Court the need for these two unconsolidated cases to be heard together and the evidence adduced by witnesses in the Claimant's case be adopted in Halim Bin Tumin's case. Halim Bin Tumin had also appeared as a witness in the Claimant's case whose evidence later was adopted as his evidence in his case.
[3] The case commenced in the Industrial Court 16 Johor Bahru division on 4 April 2022 and proceeded for continue hearings on 5 April 2022, 9 January 2023 till its completion on 23 February 2023. By consensus, parties request that the evidence of the final witness for the Claimant who resides in Kuala Lumpur by heard in this Court as both counsels are from Kuala Lumpur themselves was allowed. As I was directed by the then Learned President of the Industrial Court to hear the matter till its completion, upon its completion, I then directed the parties to file their respective submissions and as the matter were not consolidated, separate Awards will be handed down for the Claimant and for the case of Halim Bin Tumin.
[4] The Company tendered six (6) witnesses:
(a) Hasibul Hasan Shanto - Operator at Win Win Food Industries Sdn Bhd ("COW-1");
(b) Tajul Islam - Machine Operator at Win Win Food Industries Sdn Bhd ("COW-2");
(c) Md Yaemin Khan - Assistant Supervisor at Win Win Food Industries Sdn Bhd ("COW-3");
(d) Rahimah binti Ahmad - Manager, Human Resource and Administration at Win Win Food Industries Sdn Bhd ('COW4");
(e) Tan Pick Lee, Finance Director at Win Win Food Industries Sdn Bhd ("COW-5"); and
(f) Tan Kian Heon, Factory Manager at Win Win Food Industries Sdn Bhd who was the Senior General Manager - Human Resource Division of the Company ("COW-6").
The witnesses called for the Claimant's case were:
(a) Mohd Azla bin Lazim - Claimant 1 ("CLW-1");
(b) Halim bin Tumin - Claimant 2 ("CLW-2"); and
(c) Matkar bin Siwang - President, Kesatuan Pekerja-Pekerja Perkilangan ("CLW-3")
[5] In handing down the Award, the following cause papers and documents has be
