This is a reference by the Honourable the Minister of Human Resources Malaysia under Section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Encik Mathialagan a/l Ponnusamy (hereinafter known as "the Claimant") by Sungei Wang Plaza Sdn. Bhd. (hereinafter known as "the Respondent").

AWARD

Facts of the Case

The Claimant commenced employment with the Company (Respondent) as a Security Guard with effect from 4.3.1987 until he was dismissed on 22.11.2004. The Respondent operates a shopping mall known as Sungei Wang Plaza (the shopping mall) and the Claimant's duties and responsibilities, inter alia, were to safeguard the shopping mall's assets including people and property, to prevent crime, illegal and undesirable activities in the shopping mall and to be on the lookout for suspected pick pockets, shoplifters and other suspected criminals.

On 4.11.2004 at about 12.30pm., Security Guard En. Hafifinoor Aized b. Hafizzulnizam Khu who was then on duty at the Security Counter at the lower ground of the shopping mall received a claim from a Turkish national of his wife's hand bag which was left at the Hot Market at the 1st floor of the shopping mall. It was disclosed that a staff from the Hot Market had found the hand bag and had handed it to a Security Guard who was later identified to be the Claimant by the said staff from the Hot Market, Cik Hasni bt Juhari.

Claimant did not deny but admitted a handbag was found at the Hot Market but that he had returned the handbag to an Arab woman who was at the shopping mall with her child and whom he believed to be the owner of the handbag. Claimant did not check the contents of the handbag nor did he verify the identity of the owner.

Claimant was thus issued a notice of domestic inquiry and suspended from work by the Respondent from 5.11.2004 to 21.11.2004. Domestic inquiry was duly conducted on 22.11.2004 with the charge against the Claimant of failing to follow the procedure in handling lost and found items which the Respondent alleged had resulted in the loss of the handbag containing cash, handphone and identification card as well as the image and conduct of the Security Department being jeopardized and the image of the Respondent being tarnished. Claimant had duly attended the domestic inquiry. At its conclusion, Claimant was found guilty of the said charge. Consequent to this finding, Claimant was terminated with immediate effect vide the Respondent's letter dated 22.11.2004.

Claimant contended that his dismissal was without just cause or excuse and in breach of the rules of natural justice, inter alia. He prayed for reinstatement. At the time of his dismissal, Claimant alleged his last drawn salary was RM1,784.34 per month which the Respondent disputed.

The Issue

The sole issue before this Court is whether the Claimant's dismissal was with or without just cause or excuse.

The Law

In Bumiputra Commerce Bank Berhad v. Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77; [2004] 7 MLJ 441, the High Court has laid down the requirement of law that in a case where a domestic inquiry was conducted by an employer prior to a dismissal, the Industrial Court was under a duty to first consider and determine whether the inquiry was valid, its inquiry notes accurate, whether a prima facie case had been made out against the employee and whether the conclusion reached by the inquiry panel was perverse.

If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to inquire whether that reason or excuse has or has not been made out; if it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse; see Goon Kwee Phoy v. J & P Coats (M) Berhad ; [1981] 2 MLJ 129 (F.C.).

In cases of dismissal, the burden of proof lies on the employer to prove its case with convincing evidence that the workman had committed the offence or offences th