Dismissal upheld for serious misconduct as inappropriate WhatsApp messages sent by a superior constituted sexual harassment, justifying the termination despite procedural irregularities.

Reference

[1] This is a reference by The Director General of Human Resource Department pursuant to s 20(3) of the Industrial Relations Act 1967 dated 28 January 2022 which was received by the Industrial Court of Malaysia on 10 February 2022 arising out of the alleged dismissal of Madiahlagan A/L Sundaram (hereinafter referred to as "the Claimant") by Lotuss Stores (Malaysia) Sdn Bhd (hereinafter referred to as "the Company") on 26 April 2021.

Factual Backgrounds

[2] The dispute in this case is over the unlawful dismissal of the Claimant with effect from 26 April 2021 without just cause or excuse. By way of a letter dated 6 September 20014 (at pp 3-7 of COB-1), the Claimant commenced employment with the Company on 11 October 2004 as a Section Manager and later after he was confirmed in employment, he was eventually being promoted several times until his last designation prior to the dismissal was as a Store General Manager and was based at Company's outlet at Lotuss Kampar, Perak with his last drawn basic salary of RM10,050.00 per calendar month.

[3] The Company is involved in a business of supermarket retail chains outlet throughout the country. Sometimes in 2021, the Company changed its name from Tesco to Lotuss Stores (Malaysia) Sdn Bhd, the Company in the present case. At the material time, the Claimant was more commonly known as "Edwin" among his colleagues and his subordinates in the Company.

[4] Sometimes around March 2021, the Company received reports that the Claimant may have acted in breach of his express and/or implied duties by sending inappropriate WhatsApp messages to employees of a subordinate position (at pp 3-14 of COB-2), which may amount to sexual harassment. As the allegations were serious in nature, the Company conducted further investigation in order to determine the veracity of the same including to secure the necessary documents and conducted interview the employees including with the Claimant.

[5] An interview was scheduled with the Claimant on 30 March 2021, whereby the Claimant was required to present himself at Lotuss Head Office at Kepong, Kuala Lumpur to attend before Mr Richard Leonard, the Safety, Security and Resilience Director upon investigation in respect of complaints of misconduct for some inappropriate WhatsApp messages alleged to be sent by the Claimant to Nursufiah Sani Binti Harunarrashit on 14 February 2021 and to Khairulnizam Bin Md Hisham on 25 December 2020, 26 December 2020 and 30 December 2020. The Company regarded the WhatsApp messages as amounting to "inappropriate" and tantamount to "sexual harassment", which is serious misconduct and is breach of the Company's rules and regulations.

[6] Pursuant to the interview session, the Company decided to suspend the Claimant pending further investigations of the matter. The Claimant was suspended on half pay vide the letter dated 30 March 2021 (at pages 11-12 of COB-1) whereby it was mentioned that the suspension period of the Claimant commenced from 31 March 2021 until 13 April 2021. Subsequently, the Claimant received a show cause letter dated 8 April 2021 (at pp 22-23 of COB-1) and the Claimant had replied vide letter of reply dated 15 April 2021 (at pp 25-26 of COB-1) to the said show cause letter.

[7] Pursuant to its pr