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2023 MarsdenLR 2509
INDUSTRIAL COURT PENANG
MOHD NAJIB JAMALUDIN – Appellant
Versus
TENAGA NASIONAL BERHAD – Respondent
Award No: 1952 of 2023 [Case No: 18/4-2768/20]
Dismissal for absenteeism and tardiness was ruled unjust due to the Company's failure to act promptly, constituting condonation of misconduct.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed for absenteeism and tardiness - Allegation of breach of natural justice during domestic inquiry rejected - Court finds dismissal without just cause due to delay in disciplinary action and condonation of misconduct. (Paras 1, 18, 90)
(B) Misconduct - Definition and examples - Absenteeism and tardiness recognized as serious misconduct justifying dismissal - Claimant's repeated failures to attend work without leave established. (Paras 19, 22)
(C) Condonation - Failure to act on misconduct within reasonable time deemed condonation - Company allowed Claimant to remain employed for extended period without disciplinary action. (Paras 61, 88)
Facts of the case:
The Claimant was dismissed from employment after being found guilty of absenteeism and tardiness, with the dismissal occurring on 26 February 2020 following a domestic inquiry. The Claimant contended that the dismissal was without just cause due to the Company's delay in taking action against him. (Paras 5, 90)
Findings of Court:
The Court found that the Claimant's dismissal was without just cause and excuse, attributing the decision to the Company's failure to act promptly on the alleged misconduct and the long period of continued employment without disciplinary action. (Paras 90, 88)
Issues: Whether the Claimant committed the alleged misconduct and whether the dismissal was with just cause or excuse. (Paras 18)
Ratio Decidendi: The Court ruled that the delay in disciplinary action amounted to condonation of the Claimant's misconduct, which undermined the justification for dismissal. (Paras 88, 90)
Result: The Company is ordered to pay the Claimant RM58,830.00 as compensation. (Para 100)
| Table of Content |
|---|
| 1. dismissal complaint initiated (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. company's defense on dismissal (Para 7 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. court's role in dismissal cases (Para 14 , 15 , 16 , 17) |
| 4. standard of proof required (Para 18 , 19 , 20 , 21) |
| 5. evidence of misconduct (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 6. investigation procedures (Para 30 , 31 , 32 , 33 , 34) |
| 7. validity of domestic inquiry (Para 43 , 44) |
| 8. misconduct established (Para 51 , 52 , 56) |
| 9. condonation of misconduct (Para 57 , 58 , 59 , 61 , 62) |
| 10. delay in disciplinary action (Para 72 , 73 , 76 , 80) |
| 11. final order and compensation (Para 90 , 91 , 92 , 99) |
Reference
[1] This is a reference made on 19 November 2020 by the Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ('the Act') arising out of the dismissal of MOHD NAJIB BIN JAMALUDIN ('the Claimant') by TENAGA NASIONAL BERHAD ('the Company') on 26 February 2020. The Ministerial reference in this case before the Court requires the Court to hear and determine the Claimant's complaint of dismissal by the Company.
Brief Background Facts Of The Case
[2] The Claimant's pleaded case as contained in his Statement of Case dated 2 October 2021, is that he joined the Company on 17 April 2006 and was appointed to the position of Penolong Juruteknik Tingkatan Kanan Grade TT07. The Claimant then stated that at the material time of his dismissal he held the position of Penolong Juruteknik Grade TT07 and his last drawn salary was RM 2650.00.
[3] The Claimant pleads that he was issued a show cause letter dated 1 March 2018 by the Company for being absent from work for the month of February 2018. The Claimant stated that he replied the show cause letter by way of a letter dated 6 March 2018 and pleaded that there was no further action by the Company in respect of the said allegation of absenteeism.
[4] Further the Claimant states he was issued with another show-cause letter dated 26 August 2018 by the Company to which he claimed that he had replied the said letter. By way of a letter dated 19 August 2019 the Claimant was issued with a Notice of Domestic Inquiry which was scheduled to be held 22 October 2019 and 23 October 2019 but was postponed to 19 January 2020 and 20 January 2020. The Claimant also pleads that the Domestic Inquiry which he had attended was conducted in breach of the principles of natural justice.
[5] The Claimant pleaded that he was dismissed from employment with effect from 26 February 2020 after the Domestic Inquiry panel found him guilty of all charges. The Claimant asserted that the Company had also dismissed his appeal which was lodged with the Company by a letter dated 4 March 2020.
[6] The Claimant also pleaded and contended that the Company had condoned the alleged misconducts committed by him in view of the fact that the Company had elected to not to exercise its right to impose disciplinary action against the Claimant from 6 March 2018 (the date of the alleged misconduct) until 19 August 2019 (the date of the Domestic Inquiry notice) which was for a period of twenty nine (29) months. The Claimant pleads that the dismissal was effected without just cause or excuse and hence pleaded for reinstatement and the other usual reliefs.
[7] The Company on the other hand, in their Statement of Reply dated 27 December 2021 alleged that the Claimant was dismissed from his employment after being found guilty of committing serious misconducts. The Company admitted the Claimant's last held position and his basic salary as pleaded by the Claimant.
[8] Briefly, the Company pleaded that the Claimant was dismissed since based on the Company's records, the Claimant was absent from work without leave and/or without submitting any medical certificate on 15 July 2018, 16 July 2018, 29 July 2018, 2 August 2018, 6 August 2018, 7 August 2018, 2 September 2018 and 20 September 2018. It was also pleaded that
