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2024 MarsdenLR 1187
INDUSTRIAL COURT KUALA LUMPUR
DON CLAUDINE PEREIRA – Appellant
Versus
OIB MARKETING SDN BHD – Respondent
Award No: 1413 Of 2024 [Case No: 15(11)/4-1824/20]
The employer must prove misconduct for dismissal; failure to apply for leave justifies termination. Absence of a domestic inquiry does not invalidate dismissal if just cause is established.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal for misconduct - Claimant was dismissed for repeated absenteeism and late submission of sick leave applications - Court held that the Company proved misconduct on the balance of probabilities - The absence of a domestic inquiry does not render dismissal unlawful if just cause is established. (Paras 20, 21, 107)
(B) Dismissal - Just cause - The court emphasized that the employer's duty is to prove the misconduct, and the employee must apply for leave for absences - The Claimant's failure to apply for leave constituted just cause for dismissal. (Paras 21, 107)
Facts of the case:
The Claimant was dismissed by the Company for alleged serious misconduct due to repeated absenteeism without applying for leave and late sick leave applications. The Claimant's explanations were deemed unsatisfactory, leading to her termination. (Paras 3, 25)
Findings of Court:
The Court found that the Company had proven the allegations of misconduct against the Claimant, and her dismissal was justified based on the evidence presented. (Paras 20, 107)
Issues: The main issues were whether the misconduct alleged by the employer was established and whether such misconduct constituted just cause for dismissal. (Paras 20, 53)
Ratio Decidendi: The court ruled that the employer must prove the allegations of misconduct, and the Claimant's failure to apply for leave justified her dismissal. The absence of a domestic inquiry does not invalidate the dismissal if just cause is established. (Paras 20, 107)
Result: The Claimant's claims against the Company are dismissed.
Case Summary: Don Claudine Pereira v OIB Marketing Sdn Bhd (Award No: 1413 of 2024)
Parties and Background
- Claimant (Don Claudine Pereira) employed as Business Development Executive, transferred to Respondent (OIB Marketing Sdn Bhd) effective 1 November 2019. (!) (!) (!) (!)
- Dismissed on 14 February 2020 for serious misconduct: repeated absenteeism without applying for leave and late submission of sick leave applications. (!) (!) (!) (!)
Procedural History
- Show Cause Letter dated 11 February 2020 requiring explanation by 14 February 2020, 5:30 pm. (!) (!) (!)
- Claimant suspended 12 February 2020; replied late at 5:36 pm on 14 February 2020. (!) (!)
- Termination letter same day: explanations unsatisfactory, one month's salary in lieu of notice. (!) (!) (!) (!)
- Reference under s.20(3) Industrial Relations Act 1967 by Minister of Human Resources. (!) (!)
Allegations of Misconduct
- Repeated absences without leave: 4 December 2019 (late arrival), 20 December 2019, 15 January 2020. (!) (!) (!) (!) (!)
- Late sick leave applications via Kakitangan.com: 7 January 2020 (7 days late), 8 January 2020 (7 days late), 10 January 2020 (5 days late). (!) (!) (!) (!)
- Claimant admitted absences but claimed no need to apply for sick/emergency leave; challenged sick leave timeframe. (!) (!) (!) (!) (!) (!)
Evidence and Findings
- Company proved misconduct on balance of probabilities via witness testimony, WhatsApp records showing admissions and late notifications. (!) (!) (!) (!) (!) (!) (!)
- Lateness treated as absence without leave; duty to apply for all leaves (sick/emergency) promptly via system, even post-absence with MC. (!) (!) (!) (!) (!) (!)
- Absences disrupted productivity, required staff redistribution. (!) (!) (!) (!)
- Warning letter (7 February 2020) refused by Claimant who requested show cause first; not tendered as withdrawn. (!) (!) (!) (!) (!)
Court's Role and Standard
- Industrial Court determines: (1) if misconduct proven, (2) if it justifies dismissal. Burden on employer (balance of probabilities). (!) (!)
- Only reasons in show cause/termination considered, not additional records. (!) (!) (!)
Procedural Issues
- Disputes over show cause delivery (bullying alleged) and HR suggestion to resign irrelevant; no force to admit/resign. (!) (!) (!) (!) (!)
- No domestic inquiry held post-reply, but not fatal if just cause proven in court. (!) (!) (!) (!)
Decision
- Misconduct established; failure to apply/notify for leaves = just cause for dismissal. (!) (!)
- Claim dismissed. (!)
AWARD
A. Reference
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA ") in respect of the dismissal of Don Claudine Pereira ("the Claimant") by her employer, OIB Marketing Sdn Bhd ("the Company") on 14 February 2020.
B. Background
[2] This case was initially tried by me as the Chairman of Court 11, Industrial Court of Malaysia. I ceased to be the Chairman of Court 11, effective 16 January 2023. I have been requested to continue with the hearing of this case after I was re-appointed as the new Chairman of Court 15, effective 1 June 2023.
C. The Proceedings
[3] The Claimant in our present case was dismissed by the Company for alleged serious misconduct. The Company claimed that the Claimant had repeatedly been absent from work without applying for leave and was consistently late in submitting sick leave applications.
[4] The case was first called up for hearing on 23 November 2022. The Company commenced the case by calling the following persons as witnesses to give evidence in support of the Company's case against the Claimant:
(a) Leow Chin Huey ("COW1"), who was the Company's director at all material times;
(b) Goh Eng Keng ("COW2") who was the Company's Marketing Manager and the Claimant's dotted line manager at the material time. He has since left the Company on 30 November 2021; and
(c) Khoh Why Way ("COW3") who was the Company's General Manager.
[5] Upon the conclusion of the Company's case, the Claimant commenced her case against the Company. The Claimant did not call any other witnesses to give evidence at the trial. Only the Claimant gave evidence at the trial in support of her case against the Company.
[6] The following cause papers and documents have been filed and/or marked as evidence before the Court and were referred to during the proceedings:
(a) The Claimant's Statement of Case dated 5 April 2021 ("the Statement of Case");
(b) The Company's Statement in Reply dated 30 April 2021 ("the Statement in Reply");
(c) The Company's amended Statement in Reply dated 20 May 2021 ("the Amended Statement in Reply");
(d) The Claimant's Bundle of Documents ("CLB1");
(e) The Company's Bundle of Documents ("COB1");
(f) The Witness Statement of Don Claudine Pereira ("CLWS1");
(g) The Witness Statement of Leow Chin Huey ("COWS1");
(h) The Witness Statement of Goh Eng Keng ("COWS2"); and
(i) The Witness Statement of Khoh Why Way ("COWS3").
[7] The Claimant was initially represented by Dato Sheelan Arjunan ("Dato Sheelan") of Messrs Sheelan Arjunan, as her legal counsel for this matter. Dato Sheelan conducted and completed the trial proceedings for the Claimant.
[8] Puan Ryshinah a/p Ramamoothi ("Puan Ryshinah") of Messrs Ryshinah's Law Practice ha d subsequently taken over the conduct of this matter from Dato Sheelan as the new counsel for the Claimant and she proceeded to file the written submissions for the Claimant.
D. Salient Facts
[9] The Company is a subsidiary of Oriental Interest Berhad, a property developer. The Company is principally involves in the sales and marketing of land and properties.
[10] Pursuant to a letter of appointment dated 1 January 2019, the Claimant commenced employment as a Business Development Executive with OIB Management Sdn Bhd effective 3 January 2019.
[11] OIB Management Sdn Bhd, and the Company in our present case are part of the same group of companies owned by Oriental Interest Berhad ("the OIB Group").
[12] Upon completion of the Claimant's probationary period of three (3) months, she was duly confirmed in her employment as Business Development Executive via a letter of confirmation of employment dated 3 April 2019.
[13] By a Notice of Transfer of Employment dated 1 November 2019, the Claimant was informed that she would be transferred from OIB Management Sdn Bhd to OIB Marketing Sdn Bhd ie the Company, with effect from 1 November 2019.
[14] On 10 February 20
