The dismissal of an employee can be deemed justified when proven misconduct exists, particularly in light of the employee's prior disciplinary infractions.

AWARD

Syed Noh Said Nazir @ Syed Nadzir:

[1] The Ministerial reference in this case required the court to hear and determine the claimant's complaint of dismissal by the company on 26 July 2019. Hearing for this case commenced before the chairman of this division of court 21 was on 8 February 2021 and completed on 9 February 2021 pursuant to the instructions from YA Tuan Yang Dipertua, Industrial court of Malaysia in order for a final award be handed down.

Factual Matrix

Introduction Of Parties To The Proceeding

The Company

[2] The company is an insurance undertaker duly regulated by the Bank Negara formerly known as United Oriental Assurance Berhad which was merged with Capital Insurance Berhad in January 2003 to become Oriental Capital Assurance Berhad. Tune Insurance Holding Berhad subsequently acquired Oriental Capital Assurance Berhad and renamed the latter as Tune Insurance Malaysia Berhad in 2012 as in the company in the present case.

The Claimant

[3] The claimant was appointed by United Oriental Assurance Berhad vide an Appointment Letter dated 10 May 2000 (COB-1, pp 4-6) as a Trainee In-House Claims Adjuster and was given a starting salary of RM1,500 per month. Upon completing his probationary period of six months, the claimant was confirmed on his employment with effect from 10 November 2000 whereby his position was adjusted to that of an officer with a revised salary of RM1,800 per month (COB-1, p 7). Prior to the claimant's termination on 26 July 2019, he held the position of Assistant Manager - Claims Department drawing his last drawn salary of RM4580.00 per month and was responsible for Third Party loss of Use claims as an ordinary scope of his function as Assistant Manager - Claims Department since 2017.

Events Leading To The Claimant's Dismissal

[4] As part of his duties and functions, the claimant was responsible for handling Third Party Loss of Use claims since 2017, which included preparing various letters to insurance policy holders and claimants. It was the claimant's responsibility to ensure that the letters prepared by him adhered to the Company's Claims Procedure and the compulsory wordings referring to the Ombudsman Financial Services as stipulated by Bank Negara Malaysia Guidelines ("BNM Guidelines"). The claimant had been briefed on both the Company's Claims Procedure and the BNM Guidelines on a number of previous occasions, including a team meeting on 15 October 2018 and via an email reminder on 4 February 2019. (COB-1, pp 17-19: emails on briefing and reminder)

[5] Throughout his employment, the claimant had a number of disciplinary issues which resulted in multiple warnings and other punishments as follows:

(a) Warning Letter dated 4 July 2002 for the unauthorised appropriation of company property;

(b) Warning Letter dated 27 August 2017 for negligence in respect of policies breaching the CBC Cover, s 66 of the Insurance Regulations 1996 (COB-1, p 80);

(c) Final Warning Letter dated 7 April 2014 for failing to heed his superior's advice and for causing a commotion in the CEO's office;

(d) Verbal Warning and Warning Letter dated 30 November 2015 for absence without leave on 22 October 2015 despite the rejection of his leave application and for keeping collection records of premiums paid via credit card for the day 12 November 2015 without submission to the Branch Office despite being aware he would be on leave the following day; and

(e) Final Warning Letter dated 25 May 2017 and Suspension Without Pay for one month following the claimant's admission of guilt to all 33 charges in respect of transferring money from his personal account to transact business via agents' accounts, in clear breach of the Code of Conduct in the Employee Handbook and the Persatuan Insurans Malaysia Guidelines on the Code of Ethics and Conduct. (COB-1, p 106)

[6] On 25 April 2019, or thereabout, the company had learnt that the claimant had wrongly issued a letter dated 15 February 2019 in respect of the insurance claim of a claimant; one Jo