The court ruled that the dismissal was without just cause, highlighting procedural flaws and potential mala fide actions by the employer.

Duncan Sikodol:

Brief Background Facts

[1] The Claimant first commenced employment with the Company as an Administration Assistant 111 on the 23 May 1997 and subsequently as a Parts Assistant 1 until her dismissal on the 4 April 2013. At the time of her dismissal, her last drawn salary was more than RM2,500.00. In a letter dated the 9 November 2012, the Company issued a show cause letter to nthe Claimant alleging as follows;

Charge 1

You are alleged to have cheated the Company by issuing false invoice no. 661v099201 amounting to RM2,0323.40 on the 3 October 2012 when in actual fact, the genuine invoice bearing the same invoice no. actually amounted to RM453.20.

Charge 2

You are alleged to have supplied or provided a spare part known as "lower arm RH" which costs RM1,382.70 as presented in the false invoice above where the part was obtained from external supplier when you knew or ought to have known that such external supply of spare parts is prohibited and should only be obtained from the Company's store.

[2] As a result, the Company issued a notice dated 4 December 2012 to the Claimant informing her that a DI will be held against her based on the following charges above.

[3] Vide letter dated the 3 April 2013, the panel of the Domestic Inquiry found the Claimant guilty in respect of the 1st charge and by punishment order she was dismissed with effect from the 4 April 2013.

[4] The claimant now contends that her dismissal by the Company was without just cause or excuse. She contends that she did not commit the act as charged. She therefore seeks to be reinstated to her former position or be given compensation in lieue of reinstatement.

The Law

[5] In the often cited case of Milan Auto Sdn Bhd v. Wong She Yen , the duty of the Industrial Court in dismissal cases on a reference under s 20 was stated by His Lordship Mohd Azmi FCJ as follows;

"As pointed out by this Court recently in Wong Yuen Hock v. Hong Leong Assurance, [1995] 2 MLJ 753, the function of the Industrial in dismissal cases on a reference under s 20 is twofold: first, to determine whether the misconduct complained by the employer has been established and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal"

[6] It is trite law that the Company bears the burden to prove that the claimant had committed the alleged misconduct and the conduct warrants the Claimant's dismissal. See Ireka Construction Bhd v. Chantiravanathan A/L Subramaniam James ; [1995] 2 ILR 11 (Award No. 245 of 1995) and the Company needs only to prove misconduct justifying the dismissal or termination on the balance of probabilities. See Telekom Malaysia Kawasan Utara v. Krishnan Kutty A/L Sanguni & Anor, [2002] 3 MLJ 129.

Witnesses

[7] In this case, the following witnesses testified at the hearing.

COW1 - Zaffarin Syah, Manager, Industrial Relations based in Selangor and his witness statement was marked as COWS-1

COW2 - Chiang Yen Min, Manager Customer Service Operation (MCSO) UMW, Sandakan Branch and his witness statement was marked as COWS-2

COW3 - Galvin Chin Chiak Howe, Parts Assistant, Sandakan Branch

CLW1 - Liaw Cai Yen and her witness statement was marked as CLWS-1

The following bundle of documents were also used in Court and marked as follows;

Company Bundle of Documents as COB1, Claimant's Bundle of Documents as CLB 1, Company's statement in Reply.

Issues For Determination

[8] In this case, it is an undisputed fact from the evidence that the Claimant was dismissed by the Company on the 4 April, 2013 vide letter dated the 3 April 2013. Based on Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another Appeal, It now remains to be considered