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2023 MarsdenLR 2686
INDUSTRIAL COURT KUALA LUMPUR
LAI PHUI PHUI – Appellant
Versus
ID NETWORK SDN BHD – Respondent
Award No: 2347 Of 2023 [Case No: 3/4-604/21]
The dismissal of an employee must be with just cause or excuse; the existence of a verbal agreement regarding work hours can negate claims of misconduct related to punctuality.
Headnote:(A) Industrial Relations Act 1967 - Subsections 20(3) and 30(5) - Dismissal of employee - Claimant terminated for behaviour, work, and punctuality issues - Court finds dismissal lacked just cause or excuse due to existence of verbal agreement regarding work hours - Claimant entitled to back wages and compensation in lieu of reinstatement, with apportionment for contributory misconduct. (Paras 1, 38, 56, 58)
(B) Burden of Proof - The standard of proof in unjust dismissal cases is on the balance of probabilities, not beyond reasonable doubt. (Paras 9, 10)
(C) Proportionality - The doctrine of proportionality applies in determining appropriate penalties for misconduct, with emphasis on equity and good conscience. (Paras 40, 42)
Facts of the case:
The Claimant was dismissed from her position as an Interior Designer after 24 years of service, with allegations of misconduct regarding behaviour and punctuality. The dismissal followed a series of warning letters and a purported domestic inquiry. (Paras 2, 14, 36)
Findings of Court:
The Court found that the Claimant's dismissal was unjustified, primarily due to the existence of a verbal agreement regarding work hours and a lack of consistent evidence of misconduct. The Claimant was awarded back wages and compensation in lieu of reinstatement, adjusted for contributory misconduct. (Paras 38, 56, 58)
Issues: The main issues included whether the dismissal was with just cause or excuse, the validity of the verbal agreement regarding work hours, and the appropriateness of the termination based on the Claimant's behaviour. (Paras 12, 13, 38)
Ratio Decidendi: The Court ruled that the existence of a verbal agreement regarding work hours undermined the Company's claims of misconduct related to punctuality, and that the dismissal was excessive given the Claimant's long service and prior conduct. (Paras 26, 38, 46)
Result: The Court ordered the Company to pay the Claimant RM137,760.00 within 30 days. (Paras 59)
| Table of Content |
|---|
| 1. factual background of the case. (Para 1 , 2 , 3 , 4 , 5) |
| 2. chairperson's role and continuity of proceedings. (Para 6 , 7 , 8) |
| 3. burden of proof in unjust dismissal cases. (Para 9 , 10 , 11) |
| 4. assessment of dismissal legality. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 5. existence of verbal agreements and their implications. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 6. behavioral issues and their impact on dismissal. (Para 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 7. application of the doctrine of proportionality. (Para 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45) |
| 8. remedies and final award. (Para 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58) |
Reference
[1] This is a reference dated 29 January 2021 made by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Lai Phui Phui ("the Claimant") by ID Network Sdn Bhd ("the Company") on 22 May 2020.
Brief Facts
[2] The Claimant was appointed as an Interior Designer by the Company on 22 July 1995 via a letter dated 1 July 1995. The Claimant was terminated via a letter dated 22 May 2020 with immediate effect on the grounds of not heeding the warning letters issued regarding behaviour, work and punctuality. The Claimant filed a representation to the Minister of Human Resources and the Minister duly issued the referral on 21 January 2020 claiming that she was terminated without just cause or excuse.
[3] The Company is a small business with not many workers. It specialises in interior designing. The Company could also be said to be a family type business and everyone was close to each other.
[4] Things changed when the Claimant had to begin taking care of her husband on medical grounds. Initially, the Company was very accommodative to the Claimant's needs. However, things began to sour when both sides felt aggrieved by factors contributed by both sides. The Court will delve into these issues in assessing this Award.
[5] The Court has gone through the evidence as given through testimony in Court and the documents and submission that have been filed. Those documents and submissions are listed for ease of reference as follows:
(i) Statement of Case dated 1 March 2021;
(ii) Statement in Reply dated 26 March 2021;
(iii) Rejoinder dated 5 April 2021;
(iv) Bundle of Documents for Claimant filed on 29 October 2021 marked as exhibit CLB-1;
(v) Additional Bundle of Documents for Claimant filed on 8 June 2022 marked as exhibit CLB-2;
(vi) Bundle of Documents for the Company Volume 1 filed on 28 October 2021 marked as exhibit COB-1;
(vii) Bundle of Documents for the Company Volume 2 filed on 6 April 2022 marked as exhibit COB-2;
(viii) Bundle of Documents for the Company Volume 3 filed on 7 April 2022 marked as exhibit COB-3;
(ix) Bundle of Documents for the Company Volume 4 filed on 7 April 2022 marked as exhibit COB-4;
(x) Claimant's Witness Statement signed on 25 May 2023 marked as exhibit CLWS-1;
(xi) Company's Witness Statement of Mazlan Bin Mohamad signed on 17 August 2022 marked as exhibit COWS-1;
(xii) Notes of Proceeding
(xiii) Claimant's KWSP for year 2021 marked as ID-1;
(xiv) Claimant's KWSP for year 2022 marked as ID-2;
(xv) Claimant's application on Jobstreet marked as ID-3;
(xvi) Claimant's LHDN e-filing marked as ID-4;
(xvii) Submission (for the Company) dated 16 August 2023;
(xviii) Bundle of Authorities for the Company filed on 22 August 2023;
(xix) Claimant's Written Submission dated 18 August 2023;
(xx) Claimant's Bundle of Authorities filed 9 August 2023;
(xxi) Submissions in Reply (for the Company) dated 30 August 2023;
(xxii) Company's Bundle of Authorities filed on 22 August 2023;
(xxiii) Claimant's Written Submission in Reply dated 30 August 2023; and
(xxiv) Claimant's Bundle of Authorities 2 filed 25 August 2023.
The Decision
The Chair And The Role Of The Court
[6] Before proceeding with the full award, it should be expressly stated that the original Chairpers
