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2023 MarsdenLR 2698
INDUSTRIAL COURT KUALA LUMPUR
LEE TECK KHIN – Appellant
Versus
SEPANG AIRCRAFT ENGINEERING SDN BHD – Respondent
Award No: 2211 Of 2023 [Case No: 6(22)/4-2312/20]
The employer must prove that dismissal was justified by demonstrating misconduct, with the standard of proof being on the balance of probabilities.
Headnote:(A) Industrial Relations Act 1967 - Sections 20(3) and 23(6) - Dismissal of Chief Financial Officer - Claimant alleged wrongful dismissal without just cause - Court held that the employer must prove misconduct and just cause for dismissal - The Claimant's actions led to significant financial loss due to negligence in compliance with internal controls - Domestic Inquiry found Claimant guilty of misconduct. (Paras 3, 55, 64)
(B) Burden of Proof - The employer bears the burden to demonstrate that the dismissal was justified based on misconduct. (Paras 58)
(C) Standard of Proof - The standard required in industrial disputes is on the balance of probabilities, not beyond reasonable doubt. (Paras 59)
Facts of the case:
The Claimant was dismissed from his position as Chief Financial Officer due to serious misconduct involving financial negligence, leading to a loss of USD131,986 to a fraudulent account. A Domestic Inquiry concluded he was guilty of the first and second charges of misconduct. (Paras 8, 54)
Findings of Court:
The Court found that the dismissal was justified based on proven misconduct and that the employer adhered to due process in the disciplinary proceedings. (Paras 63, 64)
Issues: Whether the dismissal was with just cause and whether the employer followed due process in the disciplinary action. (Paras 55, 56)
Ratio Decidendi: The Court emphasized the importance of the employer's responsibility to prove misconduct and that the dismissal was warranted based on the balance of evidence presented. (Paras 55, 64)
Result: The dismissal of the Claimant was upheld as lawful and justified.
| Table of Content |
|---|
| 1. procedural background and submissions. (Para 1 , 2 , 5 , 6) |
| 2. claimant's employment termination details. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. company's case against the claimant. (Para 15 , 17 , 19 , 20 , 21 , 22) |
| 4. misconduct charges against the claimant. (Para 39 , 40 , 41 , 46 , 47) |
| 5. role of the industrial court. (Para 55 , 56 , 57 , 58) |
| 6. conclusion on the dismissal's justification. (Para 61 , 62 , 63) |
Procedural Background
[1] The case was previously tried and concluded by the learned Chairman, Yang Arif Tuan Iznan Bin Ishak who had since retired from the Malaysian Public Services on 9 May 2023 and ceased to be the Chairman of the Industrial Court of Malaysia.
[2] I have been requested to deliver and prepare the Award for this matter.
[3] I rely on the authority of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor ; [2011] 2 ILR 251 where the Court held that s 23(6) of Industrial Relations Act 1967 allows another chairman to continue hearing a part-heard case and the new Chairman can hand down the award in such case to ensure speedy disposal of industrial disputes as required by the Act.
[4] Therefore, this Award is written based on my reading, perusal and evaluation of the facts and evidence contained in the notes of proceedings.
Reference
[5] This is a reference by the Honourable Minister of Human Resources, under s 20(3) of the Industrial Relations Act 1967 dated 15 October 2020 pertaining to the dismissal of Lee Teck Khin (hereinafter _referred to as "the Claimant") by Sepang Aircraft Engineering Sdn Bhd (hereinafter referred to as "the Company") on 6 March 2020.
Procedural History
[6] Pursuant to the direction of this Court, the parties in this matter filed their respective submissions accordingly. This Court received the following written submission of the parties namely the Company's written submission dated 16 June 2022, the Claimant's written submission dated 17 June 2022, the Company's written submission in reply 8 July 2022 and Claimant's written submission in reply dated 8 July 2022.
[7] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:
(a) The Claimant's Statement of Case dated 23 November 2020.
(b) The Company's Statement in Reply dated 14 December 2020.
(c) The Claimant's Reply dated 28 December 2020.
(d) The Company's Bundle of Documents - COB:
(e) Common Bundle of Documents (Part A) - marked as "CBD-A"
(f) Common Bundle of Documents (Part B) - marked as "CBD-B"
(g) Non Agreed Bundle of Documents (Part C) - marked as "CBD-C"
(h) Company's Additional Bundle of Documents - marked as "COB-1"
(i) Claimant's Additional Bundle of Documents - marked as "CLA-1"
(j) Company's Witness Statement (Mohamed Raziff Abdul Hamid) - marked as "COW-WS1"
(k) Company's Witness Statement (Wan Anita Binti Mohd Zaki) - marked as "COW- WS2"
(l) Company's Witness Statement (Cyril Dubouloz) - marked as "COW-WS3"
(m) Claimant's Witness Statement (Lee Teck Khin) - marked as "CLW-WS1"
Introduction
[8] The dispute before this Court relates to the claim by Lee Teck Khin ("the Claimant") that he was dismissed from his employment without just cause or excuse by Sepang Aircraft Engineering Sdn Bhd ("the Company") on the 6 March 2020.
[9] The Claimant's employment had been terminated by the Company due to his misconduct committed by him.
Claimant's Case
[10] Pursuant to a letter of Appointment dated 7 January 2008, the Claimant was employed by the Company as Chief Financial Officer with a salary of RM21,000.00 plus Employees' Provident Fund (EPF) and was provided with company car, reimbursement of expenses related to the operations of the company car and mobile phone usage and life and medical insurance benefits. The Claimant's final monthly salary with the company was RM36,750.00 plus Employees' Provident Fund (EPF). Additionally, the Company had on average, given the Claimant 2 (two) months-Annual bonus. Reference is made t
