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2021 MarsdenLR 2731
INDUSTRIAL COURT KUALA LUMPUR
SHAM AZIZUL ZULKIFLI – Appellant
Versus
CENTRAL SUGARS REFINERY SDN BHD – Respondent
Award No: 1008 Of 2021 [Case No: 14/4-1153/20]
Absenteeism without justification is serious misconduct justifying dismissal under the Industrial Relations Act 1967, and deductions for days absent do not constitute double punishment.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – The Claimant’s dismissal for habitual absenteeism from work considered under the principles related to just cause and misconduct in employment – The Company established the Claimant's absenteeism without justifiable cause led to valid grounds for dismissal. (Paras 11, 12, 32, and 41)
(B) Deductions on salary due to unauthorized absence – Court ruled that salary deductions based on 'No Work, No Pay' principle do not equate to double punishment in context of concurrent dismissal for habitual absenteeism. (Paras 20, 22, 24, and 26)
Facts of the case: The Claimant's employment was terminated due to frequent and habitual absenteeism without reasonable justification after many warnings. His absence totaled twenty-six (26) days from January to November 2019.
Findings of Court: The Claimant's dismissal was found to be justified based on evidence of habitual absenteeism and valid according to principles of equity and good conscience.
Issues: Whether the salary deduction constituted double punishment and whether the dismissal was justified on grounds of wrongdoing.
Ratio Decidendi: The Court determined that absenteeism without justifiable cause constitutes serious misconduct, permitting summary dismissal, and that salary deductions based on non-work do not amount to double punishment.
Result: The Claimant’s claim is dismissed.
Reference
[1] This is an order of reference dated 24 July 2020 by the Honorable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 (" IRA ") arising out of the dismissal of Sham Azizul Bin Zulkifli ("the Claimant") by Central Sugars Refinery Sdn Bhd ("the Company") on 13 November 2019.
Factual Background
[2] The Claimant was employed by the Company as "Process Operator II" on 1 April 2004. His last drawn salary was RM2543.00 per month.
[3] The Company's nature business is to undertake and perform all or any the operations, undertaken by sugar refiners, contractors and shippers or by persons/companies engaged in such business.
[4] The Claimant had been absent without leave and reasonable cause between January 2019 to November 2019 in particular on:
January 2019: 05, 25
February 2019: 09, 15 & 17
March 2019: 04, 18, 27 & 31
April 2019: 22
May 2019: 02 & 18
June 2019: 11
July 2019: 08, 14, 15, 25 & 27
August 2019: 01, 10 & 18
September 2019: 29
October 2019: 18, 20 & 31
November 2019: 4
[5] On 7 August 2019, the Company had issued the Claimant a Show Cause Letter giving the Claimant three (3) days to show cause towards the Company's allegation that the Claimant had been absent without leave and reasonable cause for a total of thirteen (13) days between the month of January 2019 to June 2019.
[6] The Claimant via his reply dated 12 August 2019 to the Company admitted to being absent without leave on all the thirteen (13) days. The Claimant contended that his absence was due to his vehicle broke down and that he was sick. However, the Claimant did not provide any supporting documents and medical leave certificates to justify his absenteeism.
[7] The Claimant's salary has being deducted by the Company on the days that he was absent without leave and reasonable excuse.
[8] The Company being dissatisfied of with the excuse / reason provided by the Claimant to attempt to justify his frequent / habitual absenteeism in the Claimant's reply to the Show Couse Letter dated 12 August 2019, proceeded to find the Claimant guilty of frequent / habitual absenteeism without reasonable cause and suspended the Claimant from employment without pay from 30 August 2019 to 12 September 2019 by way of the Company's Suspension Letter dated 29 August 2019. The Company's Suspension Letter dated 29 August 2019 also served as a final warning to the Claimant that any further frequent / habitual absenteeism without reasonable cause on the part of the Claimant would be met with termination of employment.
[9] Despite the Company's suspension letter dated 29 August 2019 and final warning to the Claimant, the Claimant proceed to be absent form work without leave and reasonable cause for a total of another five (5) days, namely on:
September 2019: 29
October 2019: 18, 20 & 31
November 2019: 4
[10] As the Claimant has already been adequately warned about his frequently / habitual absenteeism without reasonable cause and did not show any signs of improvement, the company proceeded to terminate his employment summarily due to the misconduct of frequent / habitual absenteeism without reasonable cause with effect from 14 November 2019.
The Law
[11] The Claimant has made his representation under s 20 of IRA and where such representations have been made and are referred to the Industrial Court for inquiry, it is the duty of the Court as stated by the Federal Court in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, to determine whether the termination or dismissal is with or without just cause or excuse. In Hotel Malaya Sdn Bhd & Anor v. National Union of Hotel, Bar & Restaurant Workers & Anor; [1982] CLJ (Rep) 124 it was stated that in exercising this quasi-judicial function, the Court's functions comprise an investigation of the facts, an analysis of the facts, findings of facts and lastly the application of the law to those findings. Hence, the role of the Court is to determine whether the dismissal was w
