The court held that the dismissal of an employee for misconduct, including conversion of borrower funds into profits, was justified, establishing the employer's burden of proving just cause for dismissal.

Headnote:(A) Industrial Relations Act 1967 - Sections 20(3) and 23(6) - Cooperative Societies Act 1993 - Sections 58(1) and (2) and Unclaimed Monies Act 1965 - Dismissal of employee for misconduct involving conversion of borrowers' excess balances into profit - The court found that the employer established just cause for dismissal based on proven misconduct and breach of trust. (Paras 55, 60, 61, 105, 116)

(B) Burden of Proof - The employer bears the burden to prove just cause for dismissal, particularly in cases of alleged misconduct. (Paras 56, 57)

(C) Managerial Responsibility - Employees in managerial roles have heightened responsibilities and must maintain integrity and trust. (Paras 106, 108)

(D) Dismissal Justification - Dismissal upheld as fair due to the seriousness of the misconduct, which destroyed the trust and confidence between the employer and employee. (Paras 109, 115) (E) Gratuity Entitlement - Claimant's entitlement to gratuity denied due to justifiable dismissal. (Paras 116)

Table of Content
1. jurisdiction of the court in employment disputes. (Para 1 , 2 , 3)
2. claimant's employment status and alleged misconduct. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25)
3. procedural aspects of the domestic inquiry. (Para 26 , 27 , 28)
4. claimant's assertions regarding his dismissal and position. (Para 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48)
5. standards of proof in dismissal cases. (Para 55 , 56 , 58 , 59 , 62 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72)
6. evidence of misconduct regarding financial practices. (Para 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82)
7. consequences of the claimant's actions on the cooperative. (Para 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92)
8. insubordination and refusal to comply with lawful orders. (Para 93 , 94 , 95 , 96)
9. defective charges and the necessity of particulars. (Para 97 , 98 , 99 , 100)
10. validity of the revocation of the claimant's promotion. (Para 101 , 102 , 103)
11. just cause for dismissal in employment law. (Para 104 , 105 , 106 , 107 , 108 , 109 , 110 , 111)
12. fiduciary duty and trust in employer-employee relationships. (Para 112 , 113 , 114 , 115)
13. final conclusion on the dismissal's justification. (Para 116)

Eswary Maree:

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Honourable Minister of Human Resources, emanates from the dismissal of K Puspanathan a/l Krishnan ("the Claimant") by Koperasi Konsumer Malaysia Berhad ("the Cooperative") on 6 July 2018.

Preamble

[2] This case was partly heard before other Learned Chairmen and upon the exit of the Learned Chairmen from the Industrial Court, the hearing was continued before me. With this regard, s 23(6) of the Act reads as follow:

"During the absence or inability to act from illness or any other cause by the Chairman, the Yang Di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman and, notwithstanding that the Chairman may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing and determining any trade dispute or matter commenced before him."

[3] Thus, it is clear that s 23(6) of the Act allows another Chairman to continue hearing and determine a part heard case. Reference is also made to the High Court decision in Bax Global (Malaysia) Sdn Bhd v. Sukhder Singh Pritam Singh & Anor ; ; [2010] 2 CLJ 534 wherein it was held that a Learned Chairman has the jurisdiction to hand down an Award in a matter heard by another Chairman.

[4] This Court will determine the issues before it and make its findings based on the pleadings, notes of proceedings, the relevant oral and documentary evidences, the cause papers and submissions. The following documents were filed before this Court:

(i) Statement of Case dated 11 January 2019;

(ii) Statement in Reply dated 11 February 2019;

(iii) Rejoinder dated 8 March 2019;

(iv) The Claimant's Bundle of Documents: CLB-1;

(v) The Claimant's Bundle of Documents (Vol 2): CLB-2;

(vi) The Claimant's Bundle of Documents (Vol 3): CLB-3;

(vii) The Claimant's Bundle of Document (Vol 4): CLB-4;

(viii) The Claimant's Bundle of Documents (Vol 5): CLB-5;

(ix) Co-Operative Societies Act 1993 (Act 502) & Regulations (As at 25 April 2014): CLB 6;

(x) The Cooperative's Bundle of Documents: COB-1;

(xi) The Cooperative's Bundle of Documents 2: COB-2;

(xii) The Cooperative's Bundle of Documents 3: COB-3;