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2023 MarsdenLR 2138
INDUSTRIAL COURT KUALA LUMPUR
HALIM TUMIN – Appellant
Versus
WIN WIN FOOD INDUSTRIES SDN BHD – Respondent
Award No: 2362 Of 2023 [Case No: 6(16)/4-1607/21]
The absence of a Domestic Inquiry does not invalidate dismissal if the court can rehear the matter, and dismissal was justified based on employee's misconduct.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant dismissed for alleged misconduct of persuading employees to join a union and entering restricted areas without permission - No Domestic Inquiry held prior to dismissal - Court held that allegations were not substantiated as required by law - Dismissal deemed with just cause. (Paras 66-99)
(B) Natural Justice - Requirement of a Domestic Inquiry - While the absence of a Domestic Inquiry is noted, the Court can rehear the matter de novo, thus curing any breach of natural justice. (Paras 97-98)
Facts of the case:
The Claimant was dismissed by the Company on 1 September 2020 for allegedly breaching the Industrial Relations Act by collecting money from foreign workers for union membership and entering a restricted area without permission. The Claimant contended that the dismissal was without just cause, as no inquiry was conducted.
Findings of Court:
The Court found the dismissal was justified based on the Claimant's involvement in misconduct, despite the lack of a Domestic Inquiry.
Issues: Whether the Claimant committed the alleged misconduct and whether the dismissal was with just cause or excuse.
Ratio Decidendi: The Court determined that the Company failed to prove the misconduct alleged, particularly the timing of actions and the nature of the premises involved, but concluded the dismissal was justified due to the Claimant's actions.
Result: Claimant's claim dismissed.
| Table of Content |
|---|
| 1. reference and procedural background (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. claimant's employment details and termination reasons (Para 7 , 8 , 9 , 10) |
| 3. claimant's arguments and defenses (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 4. burden of proof in dismissal cases (Para 22 , 23 , 24 , 25 , 26) |
| 5. court's evaluation of evidence (Para 27 , 28 , 29 , 30 , 31 , 32) |
| 6. witness testimonies and credibility (Para 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45) |
| 7. claimant's evidence and cross-examination (Para 46 , 47 , 48 , 49 , 50 , 51 , 52) |
| 8. union-related testimonies and implications (Para 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65) |
| 9. analysis of misconduct allegations (Para 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86) |
| 10. court's findings on misconduct and dismissal (Para 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94 , 95 , 96) |
| 11. conclusion and final judgment (Para 97 , 98) |
[1] This is a reference by the Minister of Human Resources made under s 20(3) of the Industrial Relation Act 1967 (Act 177) ("the Act") arising out of the dismissal of Halim Bin Tumin ("the Claimant") by Win Win Food Industries Sdn Bhd ("the Company") on 1 September 2020.
Introduction
[2] At the outset, parties agreed that this case be heard together with another case no: 16/4-1030/21 (Mohd Azla Lazim v. Win Win Food Industries Sdn Bhd [2023] MELRU 2318) involving the same Company as they involved identical facts and sequence of events that led to both claimants' dismissal. In fact, both the claimants' letters of termination were dated the same in notifying them of their similar dates of termination. Parties further informed the Court that the evidence to be adduced by witnesses in Mohd Azla Bin Lazim's case be adopted as evidence in the Claimant's case.
[3] This Court has handed down an Award No 2318 of 2023 [[2023] MELRU 2318] dated 4 December 2023 for Mohd Azla Bin Lazim's case and as these two cases were not consolidated when they were heard together till its completion, the Court now hand down this separate Award having taken into consideration all documents, cause papers together with the notes of evidence.
[4] The case commenced in the Industrial Court 16 Johor Bahru division on 4 April 2022 and proceeded for continue hearings on 5 April 2022,09 January 2023 till its completion on 23 February 2023. By consensus, parties' request that the evidence of the third and last witness for the Claimant's case whore sides in Kuala Lumpur be heard in Court 6 in the Kuala Lumpur division as both counsels are from Kuala Lumpur themselves, was granted by this Court.
[5] The Company tendered six (6) witnesses.
(a) Hasibul Hasan Shanto - Operator at Win Win Food Industries Sdn Bhd ("COW-1");
(b) Tajul Islam - Machine Operator at Win Win Food Industries Sdn Bhd ("COW-2");
(c) Md Yaemin Khan - Assistant Supervisor at Win Win Food Industries Sdn Bhd ("COW-3");
(d) Rahimah binti Ahmad - Manager, Human Resource and Administration at Win Win Food Industries Sdn Bhd ('COW4");
(e) Tan Pick Lee, Finance Director at Win Win Food Industries Sdn Bhd ("COW-5"); and
(f) Tan Kian Heon, Factory Manager at Win Win Food Industries Sdn Bhd who was the Senior General Manager - Human Resource Division of the Company("COW-6").
The witnesses called for the Claimant's case were:
(a) Mohd Azla bin Lazim - Claimant 1 ("CLW-1");
(b) Halim bin Tumin - ("Claimant "); and
(c) Matkar bin Siwang - President, Kesatuan Pekerja-Pekerja Perkilangan ("CLW-3")
[6] In handing down the Award, the following cause papers and documents has been considered:
i) Statement of Case, Statement In Reply and Rejoinder;
ii) Company's Bundle of Documents for Case No 1030 ("COB(A)");
iii) Company's Bundle of Documents for Case No 1607 ("COB(B)")
iv) Claimant's Bundle of Documents for Case No 1030 ("CLB(A)");
v) Claimant's Bundle of Documents for Case No 1607 ("CLB(B)");
vi) Claimant's Bundle of Documents 1A ("CLB(1A)");
vii) Claimant'
