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2021 MarsdenLR 749
INDUSTRIAL COURT KUALA LUMPUR
YUEN WENG HON – Appellant
Versus
BENZ & CARLTON ASSET MANAGEMENT SDN BHD – Respondent
Award No: 1513 of 2021 [Case No: 14(6)/4-2192/19]
Dismissal upheld due to established misconduct, including insubordination and procedural failures, justified under the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Unfair dismissal – Claimant's dismissal was upheld due to insubordination and misconduct including unauthorized leave and failure to follow company procedures regarding financial transactions – The company had established grounds for dismissal based on proven misconduct. (Paras 54, 138, 141)
(B) Burden of Proof – The burden lies on the employer to prove that the dismissal was justified based on misconduct by the employee. (Paras 55, 58)
(C) Proportionality – The dismissal must be proportionate to the misconduct proven, which, in this case, was established. (Paras 137, 141)
Facts of the case: Claimant was dismissed after being found guilty of multiple charges of misconduct including going on unauthorized leave and procedural failures in handling petty cash. Claimant contended that the dismissal was without just cause.
Findings of Court: The court found that the employer had proven all charges against the claimant on a balance of probabilities.
Issues: Whether the claims of insubordination and misconduct justify dismissal and whether the employer acted reasonably in validating the dismissal.
Ratio Decidendi: The court concluded that the employer provided sufficient proof of misconduct, warranting the claimant's dismissal as justifiable.
Result: Claimant's claim dismissed.
AWARD
Reference
[1] This is a an order of reference made under s 20(3) of the Industrial Relations Act 1967 (" IRA ") arising out of the dismissal of Yuen Weng Hon ("the claimant") by Benz & Carlton Asset Management Sdn Bhd ("the company") on 20 June 2019.
[2] In this trial, the following witnesses have been called by the parties:
The Company's Witnesses
COW1 - Ms Gretchen N Nathan, Director of Human Resources
COW2 - Cik Nurhasmizah Binti Isa, Accounts Executive
COW3 - Ms Lalitha Arruna Shoffieah a/p Thangaraja, Area Manager
COW4 - Ms Premawatchy a/p Mayandy, Admin Executive
COW5 - Mr Derrick Khoo Boo Theam, Area Manager
COW6 - Cik Intan Yusniza Binti Mazlan, Building Executive
COW7 - Dato' Sri Aloysius Nathan, Managing Director
CLW-1 - The claimant, former Building Manager of the company gave evidence on his behalf
Factual Background
[3] The claimant commenced his employment as a Building Manager with the company on 19 November 2018 vide Letter of Appointment dated 2 November 2018.
[4] The claimant's last drawn salary was RM9,000.00 per month. The claimant was also paid fixed monthly allowances of RM500.00 for travelling and RM500.00 for mobile phone.
[5] On 24 April 2019, the claimant applied for leave from 28 May 2019 to 29 May 2019 to Johor and from 10 May 2019 to 17 May 2019 for a holiday to Busan, South Korea.
[6] On 2 May 2019, the Human Resources Department of the company ("HR") informed the claimant that his leave from 28 May 2019 to 29 May 2019 had been approved. However, on 8 May 2019, the HR informed the claimant vide email that his leave from 10 May 2019 to 17 May 2019 was frozen due to an email by COW5, the company's Area Manager which was received by the claimant earlier from Ms Beh on 11 April 2019.
[7] The claimant went ahead with his trip to Korea despite his leave application form 10 May 2019 to 17 May 2019 was not approved by the company.
[8] On 18 May 2019, the claimant reported to work at Bistari Condominium at around 8.55 am but was refused entry by Mr Jay, Relief Manager and further the claimant was informed by Mr Jay that the office safe was opened under COW5's instruction while the claimant was away on holiday.
[9] On 21 May 2019 the company issued the first show cause letter to the claimant demanding explanation with regard to the following charges and further the claimant was suspended from employment with half pay effective from 21 May 2019 until 27 May 2019:
1(i) Petty Cash
Petty cash amount of RM2,164.15 (please refer to petty cash listing as at 15 May 2019) has been reimbursed into your bank account. You have banked-in RM1,000.00 into Redzuan's account and it was told by Ms Intan that you are still having balance of RM367.00 from the previous petty cash reimbursement.
RM2,164.15
- RM1.000.00 (Amount that was bank into Redzuan's account)
RM1,164.15
+ RM367.00 (Previous petty cash reimbursement balance)
RM1,531.15
Therefore, petty cash amount of RM1,531.15 is still missing. Please explain.
1(ii) Reimbuesement Money Banked Into Chargeman's Bank Account
You have banked in RM1,000.00 petty cash reimbursement into Mr Redzuan's (Chargeman) bank account. Ms Intan is your Assistant at Bistari Condominium and you were supposed to bank into her account but instead you have bank in into Mr Redzuan's bank account.
Please explain on the above.
2) Renovation Deposit
Renovation deposit of RM3,000.00 cash was received from owner of unit No S-17-1 but there was cash of RM2,600.00 in the safe box and only you. the Building Manager has access to the safe box. RM400.00 was found to be missing and there was no bank in slip or notes for the missing cash amount.
You are hereby required to explain reason(s) for the above mentioned missing cash.
3) Handover
You went on leave without doing a proper handover to your assistant. Ms Intan. The key to the safe was held by you and the safe box combination was not given to her. On 13 May 2019 (Monday). she has texted you via WhatsApp to request for safe key combination. The text message was deliver
