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2023 MarsdenLR 1719
INDUSTRIAL COURT PULAU PINANG
NUR NADIA FIRASHA AZIZAN – Appellant
Versus
CELCOM AXIATA BERHAD – Respondent
Award No: 1751 Of 2023 [Case No: 9/4-685/22]
The dismissal of an employee for serious misconduct involving deception regarding medical leave is justified when the employer proves the misconduct on the balance of probabilities, adhering to principles of natural justice.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - The court confirmed the dismissal of the Claimant for serious misconduct involving deception regarding medical leave - The Claimant's failure to provide valid medical documentation and the lack of a domestic inquiry were addressed - The court emphasized the burden of proof lies with the employer to establish just cause for dismissal. (Paras 14, 15, 17, 47, 56)
(B) Natural Justice - The court found no violation of natural justice, as the Claimant was afforded sufficient opportunity to respond to allegations before dismissal. (Paras 45, 46)
(C) Burden of Proof - In dismissal cases, the employer must demonstrate that the misconduct occurred and constitutes just cause for termination. (Paras 17, 56)
(D) Standard of Proof - The standard of proof in industrial cases is on the balance of probabilities, not beyond reasonable doubt. (Paras 18, 56) (E) Misconduct - The court determined that the Claimant's actions constituted serious misconduct, undermining the trust required in the employer-employee relationship. (Paras 47, 56) (F)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. reference and procedural background. (Para 1 , 2 , 3 , 4) |
| 2. claimant's employment and dismissal details. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 3. arguments from both parties. (Para 12 , 13) |
| 4. role of the industrial court. (Para 14 , 15 , 16 , 17 , 18) |
| 5. evaluation of evidence. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 6. contradictions in evidence. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35) |
| 7. validity of the purported doctor letter. (Para 36 , 37 , 38 , 39 , 40 , 41 , 42) |
| 8. witness credibility and conflict of interest. (Para 43 , 44) |
| 9. natural justice considerations. (Para 45 , 46) |
| 10. appropriateness of dismissal. (Para 47 , 48 , 49) |
| 11. court's findings on misconduct. (Para 50 , 51 , 52 , 53 , 54 , 55 , 56) |
| 12. final judgment and dismissal of claimant's case. (Para 57 , 58 , 59) |
[1] This is a reference dated 2 March 2022 by the Director General of the Malaysia Industrial Relations Department to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA "). This reference is in respect of the dismissal of Nur Nadia Firasha binti Azizan (hereinafter referred to as "the Claimant") by her employer, Celcom Axiata Berhad (hereinafter referred to as "the Company") effective on 29 September 2021.
[2] The case previously tried and concluded by the former Chairman, Yang Arif Puan Suraiya binti Mustafa Kamal who had left the Industrial Court on transfer to other agency. Eventhough this case is heard by anorther Chairman, I have to prepare and deliver the Award for this matter according to s 23(6) of the Industrial Relation Act 1967 provides that the Yang Di Pertuan Agong may appoint another person to carry out the duties of the Chairman due to the absence of a Chairman or inability to carry out the duties due to illness or other reason. This principle has also been decided by the Kuala Lumpur High Court in the case of Sukdev Singh Pritam Sing v. Bax Global (Malaysia) Sdn Bhd ; [2009] 2 ILR 129 (Award No 348 of 2009).
[3] Therefore, the Award written base on my reading, perusal and evaluation of the facts and evidence contained in the notes of proceedings prepared by the former Chairman, Yang Arif Puan Suraiya binti Mustafa Kamal and from the documents made available to me.
[4] This Court has considered the following cause papers and documents in handing down this Award, namely:
(a) Claimant's Statement of Case dated 3 June 2022;
(b) Company's Statement in Reply dated 17 June 2022;
(c) Claimant's Rejoinder 22 July 2022;
(d) Claimant's witness statement (Nur Nadia Firasha binti Azizan) marked as "CLWS-1";
(e) Claimant's witness statement (Dr Farah Izzati binti Shaiful Azhar) marked as "CLWS-2";
(f) Company's witness statement (Syed Abdul Halim) marked as "COWS- 1";
(g) Company's witness statement (Idyvuno Saha bin Mohd Sanusi) marked as "COWS-2";
(h) Claimant's bundle of documents marked as "CLB-1"; and
(i) Claimant's bundle of documents marked as "CLB-2";
Brief Facts Of The Case
[5] The Claimant commenced employment with the Company on 18 September 2006 as a Senior Clerk, Network Management with a monthly salary of RM1,180.00 pursuant to a letter dated 6 September 2006 (CLB-1 pp 1-3). Vide a letter dated 23 January 2007 (CLB-1 p 4) the Company confirmed the Claimant's employment with effect from 18 December 2006.
[6] The Claimant was purportedly sick and was absent from work on 14 July 2021 and 15 July 2021. On 16 July 2021, the Claimant applied for medical leave for 14 July 2021 and 15 July 2021 by uploading a Purported Doctor Letter ("PDL") dated 14 July 2021 (CLB-1 p 6) signed by one Dr Farah Izzati Saiful Azhar ("Dr Farah- CLW-2") in Sapphire (COB-1 pp 7-8).
[7] On 23 July 2021 at 12.03 pm, Goh Chye Yin from the Company sought clarification on the PDL to verify the issuance date of the PDL and the hospital that the Claimant visited to obtain the letter.
[8] Upon receiving the said PDL, there was an enquiry with HSJ on the validity of the letter.
